On The Patent Protection For Computer Software In China

With the development of economic globalization, popularization of computersand the Internet, computer software has become indispensable in our daily lifeactivities, the software industry has become a pillar industry in the development ofthe world economy. Good legal protection is a prerequisite for the development ofthis industry.The legal protection of software is controversialinitially, for one ofimportant legal characters of software: software is both literary and functional.Theliterary characteris mainly reflected in the software is written by computer language,the source code form and literature are very similar, so some people advocate usingcopyright law to protect software; The functional character is mainly reflected insolving practical problems appeared in our daily life. The functional characterofsoftware is main value of software, so some people advocated patent law or separatelegislation to protect software. As the software product’s largest exporter, the USAselected and encouraged other countries to use copyright law to protect softwareworksforits software business interests.Since American had a big influence in globalpolitical, economic, cultural, and soon in the revision of the national copyright law,the software included in the scope of protection of copyright law. However, with thedevelopment of software, the copyright law to protect software weaknesses emerge,according to the dichotomy of ideas and expression, copyright law protects only theexpression works not protect the ideas in the works, which caused imitation softwarethe core idea of the infringement behavior can not be sanctions.Facing that copyright law can not protect the core idea of software, people thinkof using patent law to compensate for this deficiency, but the software in the eyes ofmany people is a mathematical algorithm, rules and methods for mentalactivities,while patent law does not protect the natural law and the rules and methodsfor mental activities, so the software, at least the software patent law itself can not bethe object of protection. In my opinion, the software itself is not a mathematicalalgorithm, which is the expression of mathematical algorithms, it is not "rules and methods for mental activities" on the alleged patent law, because the software afterthe design is completed and put into use does not require human intellectual activityinvolved, it and other protected subject matter of patent law should be protected aspatent law.United States, Japan and Europe has used patent law to protect software productswith different degree.The degree of protection to computer software of patent law inthe U.S. and Japan are higher than Europe. After changing the test and legislativesystem of judicial cases for many years, these countries have enacted laws suited totheir software development. Due to the late start of computer technology, thedevelopment of software patent law protection is also late, but due to the rapideconomic development in recent years in our country, the software industry has beenbooming, but the degree of protection of software patent law is still very low, so inthis article the author creatively patent law protection of suggestions to improve oursoftware, including the software itself will be included in the scope of protection ofpatent law, to take protective software for business methods, shortening the reviewperiod, such as software patents, these recommendations will be adopted if they aregive a better protection of software patent law, the software industry to better andfaster development of comprehensive legal protection.