Distinction Test For Patentable Subject Matter And Abstract Ideas In The US And China

Abstract ideas are not patentable, which is a basic principle in US patent law. In China, similarly, rules and measures of intellectual activities cannot be a patentable subject matter. Since we have stepped into the Information Era, human ideas have greatly promoted the technology development with the assistance of all kinds of tools. However, the difficulties in distinguishing abstract ideas and patentable subject matters have been increased accordingly, particularly those applications involving computer software and business methods. The US courts have developed different tests to solve this problem through cases, but these abstract tests are not quite consistent and have made the situation more complicated. The Supreme Court of the US has recently decided again that abstract ideas cannot be patent in Alice v. CLS on June 2014. Still, this decision does not clearly address how we can handle this problem.The first chapter of this thesis will introduce the issue of distinguish between patentable subject matter and abstract idea. The second chapter will summarize the principles held by the Supreme Court by analyzing the tests in those cases, so as to understand the shared theory that a subject matter cannot be patentable if it will result in preemption. Meanwhile, Chapter Two will also discuss the issue from a utilitarian view, that only the subject matter which can reflect the property advantages can be patentable. Chapter Three will then discuss the laws and regulations in Chinese patent law, and try to find problems in current legal system in this field. Chapter Four will compare and contract of this issue between Chinese patent law and the US patent law, and address the preferable point that can be learned from the US. Last but not lease, Chapter Five will provide some advice on Chinese patent law system on this issue based on the experience of the US, in order to fully leveraging the patent system to promote technology development in China, including considering social effect in patentable subject matter, avoiding this issue through utility, non-obviousness and novelty, encouraging more proper disclosure, and enriching the meaning of technical elements.