Subject Matter Eligibility Examination Guidelines Of Software Patent

Due to the rapid development of the information technology industry,computer software has been protected in the form of patents.Computer software to obtain patent protection needs to cross two thresholds.The first threshold: whether it is subject matter eligibility,also known as the object of personality,the universals in our academic use of the term patentability,but the logic of the latter is more reasonable,the meaning of the same in both),That is,whether the software patent application is the object of patent law protection.The second threshold,whether the software patent application meet the patentability and other patent standards.This article is mainly about the first threshold,that is,the subject matter eligibility analysis of software Patent.This paper bases on subject matter eligibility examination guidelines of software patent in "the revision of the" Examination Guidelines for Patent "decision by the SIPO ".First of all,to explore the development of China's software patent system,and then compare with the United States The software patent system.Finally,put forward some advice about China's subject matter eligibility examination guidelines of software Patent.This article is divided into five parts,about twenty thousand words.Part I,an outline of changes to China's subject matter eligibility examination guidelines of software Patent.This section first introduces the latest revisions to the subject matter eligibility examination guidelines of software Patent,with a focus on allowing software patent applications to be protected in the form of media.Clarification of program modules can constitute device claims and incorporate commercial method patents range.Secondly,based on these changes,we can see the development trend of Examination Guidelines for Patent in our country,that is,expand the scope of patent protection and increase the form of protection.Finally,we discuss the shortcomings of the Examination Guidelines for Patent for software in our country: confuse the concept between the computer program per se and the rules and methods of intellectual activity,and,in addition,do not develop a clear Examination Guidelines for Patent.Part II,China's development of subject matter eligibility examination guidelines of software Patent.In 1986,China developed the first version "Examination Guidelines for Patent ",and later in 1993,2001,2006 and 2010 were revised.This section,first introduced the first time to develop "Examination Guidelines for Patent",when the software patent does not develop specific detailed provisions.With the development of information technology in China,the “Examination Guidelines for Patent 1993” incorporates a patentability review of the software,and the “Examination Guidelines for Patent 2001” is refined."Examination Guidelines for Patent 2006" then changed the standard of " Examination Guidelines for Patent 2001",and ultimately established China's Subject Matter Eligibility standards.Part III,the experience of Subject Matter Eligibility examination guidelines of software of United States.With the rise of software industry of the United States,software patent experienced five periods: indefinite protection,refused to protect,began to protect,expand protection and rational return.At all times,the United States on the software patentability examination guidelines are not the same.In the case of Diehr,the United States seems to use a more stringent "Machine-or-transformation test" standard.After Diehr case,the United States combined with Freeman,Walter and Abele case experience,adopted a "Freeman-Walter-Abele two-step analysis".Until the Alappt case,the United States adopted a more relaxed "practical,concrete and tangible effect" standard.Starting with the Bilski case,the US attitude toward software patent protection began to shift,Examination Guidelines for Patent tend to be strict,and the abolition of "practical,concrete and tangible effect" standards.Alice also established Mayo/Alice two-step test method,reflecting the United States on the software to adopt a more stringent Examination Guidelines for Patent.But after Alice case,the new Enfish case reflects the United States on the software patent protection attitude began to turn to open.Part IV,comparing the software Examination Guidelines for Patent between China and the United States on.China's patent system is transplanted in Europe and the United States,so China and the United States on the Examination Guidelines for Patent criteria are similarity,and their differences is little.The similarity between China and the United States on the patentability of software standards is that,both of the Subject Matter Eligibility and patentability review to distinguish,not the software itself and abstract ideas for patent protection,can be methods,Media and device claims in the form of software patents to protect.In addition,the protection scope of software tend to be consistent,will be incorporated into the scope of commercial protection.China and the United States on the patentability of the software review the difference is that the same software patented invention,the United States can simultaneously give three forms protection: methods,devices and media forms,however,China don not allow both the device and the media at the same time.Part five,based on the development of software patent in China and the American experience,put forward the suggestions to improve the patentability of Chinese software.First of all,defining the "computer software" is a natural language description of the technical program,"The computer per se" is the expression of the rules and methods of expression rather than abstract intelligence.Second,the business method patents apply to Subject Matter Eligibility examination guidelines of software Patent.Finally,apply for the lower technical standards of the subject matter eligibility of the software.