Research On Patent Protection Of Cloud Computing

With the rapid development of cloud computing technology and related industries,the frequency of cloud computing patent disputes occurred in the judicial practice has significantly increased,among which the problems of patent object identification and the patent infringement dispute have become the core issue and the bottleneck of patent protection of cloud computing.On the legal identification of the patent object of cloud computing,the standard of patent object identification has important influence,which can be broadly divided into Patent Eligibility standard and Substantive standard.As to the Patent Eligibility standard,having technical characteristic based on the judgment of two elements—natural law and technical means is the prerequisite to be included in the scope of protection of Patent Law;As to the Substantive standard,there exists three constituent elements—novelty,creativity and practicability,which decides whether the object with the patent eligibility can be protected by Patent Law.New technologies and methods formed in the cloud computing like business method,business model,software and its algorithm,relying on the Internet,have their own distinctive features and are different from traditional patentable objects.Consequantly the standards of patent object identification for cloud computing also have some particularity in its connotation and application.For another,as the direct focus of interests distribution and conflict between patent holder and the public,the patent infringement acts become more complex under the influence of cloud computing,causing numerous patent protection problems featured by the issues of the determination of the jurisdiction of the court and the identification of multi-party participation in multi-step infringement and cross-border infringement,which are challenging current patent legislation.China is the bright younger generation in cloud computing,thus there is still a big gap between China and developed countries like Europe and U.S..Globally,the cloud computing development and protection system in the U.S.is relatively mature,which ought to be our main object of study and reference.Combined with domestic cloud computing technology development and resources of the legal system for patent protection,the paper puts forward some corresponding suggestions for improvement from the perspective of substantive law,procedural law and patent strategy.Concerning the substantial law,it is suggested that we conduct a flexible understanding and application on the review criteria for patent applicationsof cloud computing and refine the provisions on the patent indirect infringement system,that is,taking the principle of universal coverage as the footstone and trying to use the joint tort rules with no intention to communicate to resolve the issue on legal identification of the infringement of cloud computing.In procedural law,there mainly exists suggestions about the jurisdiction of infringement cases in cloud computing.The paper suggests to apply the domestic regulation on the jurisdiction of Internet copyright infringement cases by analogy or to localize the principle of minimum contact established by the U.S..and thus forming special jurisdiction system in China.In the lay of patent strategy,the paper suggests enterprises to attach importance to research of foreign patent map,promote original innovation and actively participate in the formulation of international cloud computing technology standards,thus creating an important guarantee for China to seize the commanding heights of cloud computing patent protection.