| With the rapid development of information technology industry,the software industry is now playing a crucial role in the social economy of each country.In this context,the legal protection of computer software becomes increasingly important and has attracted great attention of the whole world.At this stage,most countries choose to adopt copyright legislation to protect software.However,due to the characteristics of computer software,it turns out that purely depending on copyright legislation is insufficient.On this basis,the US-led information industry developed countries have successively enacted the Patent Law for the software protection.For example,the inquisition into the Bilski Case in 2010 and Alice Case in 2014 that proceeded by The United States Supreme Court has been a milestone in the history of the US software patent law.In these two cases,The United States Supreme Court decided that the claim of the right requirements,which involves abstract ideas,was unpatentable.The sprit and the base of above judgments have exerted an important influence on the application of software patent law in American judicial practice,especially on the determination of the scope of patent objects.What is more,the patent protection of computer software is not only a theoretical issue in the field of law,but also a policy issue of national economic development.In terms of our country,along with the flourish in computer software industry,the desire for patent protection of software becomes more and more urgent.Thus,it is necessary for our country to legislate relevant rules for computer software protection by drawing lessons from the practice of the United States while basing on our national conditions.This paper consists of four parts:The first part mainly analyzes the problem that whether computer software is patentable by introducing their definition and features.Also,by comparing the advantages and disadvantages of copyright and patent protection,it concludes that patent protection is more scientific?reasonable as well as adaptable to the era.The second part introduces the legislation on the patentable computer software of a variety of counties,such as the United States?Japan?the European Union and our country.In addition,it compares the patent law of computer software in different processes in our country,especially focusing on discussing issues of the patent for software invention,which is stipulated in the ninth part of the second chapter of The Guide of Patent Reviewing.In the third part,the judicial practice of software patent protection in the United States is reviewed firstly.Then,a detailed analysis of the Case Bilski was carried out by translating the judgment of The United States Supreme Court and its basic situation and reasons was explored.Besides this,a more in-depth study of the Alice case based on the translation of the Supreme Court decision is conducted.On this basis,it elaborates the enlightenment of the Case Bilski and the Case Alice to the patent of computer software in our country through a theoretical comparison between the abstract ideas exception of the United States Patent Law and the rules of intellectual activity of China's Patent Law.Furthermore,the analysis of the determination of patentable computer software in China's computer software patent judicial practice,especially the study of the cases that Sony and IBM applied for patents on two software reviewed by patent reexamination board in china,has been discussed as well.The fourth part summarizes the full text and puts forward some suggestions for the development of the computer software patent in our country. |
PDF Full Text Request