[Abstract] The protection of computer software has always tended to be protected by copyright law. In recent years, the United States and other Western countries have begun to grant patents to them. This has made the legal protection of computer software Protection has a new development trend. The article mainly conducts a feasibility analysis on computer software patent protection, introduces the modification of patent examination standards in major Western countries, and makes suggestions for the modification of my country's patent examination standards, hoping to be helpful in formulating my country's software patent protection strategy.
[Keywords] Computer software; patent protection; copyright protection
[About the author] Xu Li, Lecturer, School of Humanities, Quanzhou Normal University, Master of Laws; Lian Mingwei, Quanzhou Normal University Cadre of the Personnel Department, Quanzhou, Fujian 362000
[Chinese Library Classification Number] D923.42
[Document Identification Code] A
[Article Number] 1672-2728 (2006)12-0166-03
How to protect computer software? Historically, protection has been implemented through copyright law, but the protection of copyright law has its inherent flaws. With the development of the new situation, countries have begun to protect computer software through patent legislation. From the comparison between copyright protection and patent protection, it can be seen that patent protection for computer software is very necessary and feasible. This is the world development trend of computer software protection.
1. Feasibility analysis of computer software protected by patent law
(1) Analysis of advantages and disadvantages under copyright protection
From the perspective of objects protected by copyright law and computers Considering the characteristics of software works, using copyright law to protect software is an inevitable choice by chance. Under the existing intellectual property legal system, copyright law protection software has the following advantages:
1. The automatic protection principle of copyright law allows software to be protected almost without any special legal procedures, which enables computer software to be protected in a timely manner.
2. The acquisition of software copyright does not require innovation, only "originality". Even with the same idea, the same algorithm can be implemented in different ways of expression. As long as it meets "originality", it can be copyrighted.
3． Copyright law gives rights holders the most substantial right to exclude reproduction. The main form of software infringement is copying. Although there are many forms of copying on the Internet, the software rights holder still has the right to prohibit others from copying in any form without permission.
However, copyright protection has a characteristic, that is, it only protects the expression form of computer software and does not protect its logical block diagram and concept. In fact, the logical block diagram and idea are more important than its form of expression, because many people can express the same idea in different forms. Logic diagrams and ideas take a lot of time to develop, and if they are not protected, it will be detrimental to innovation. Therefore, the protection of computer software by copyright can be said to be incomplete.
(2) Analysis of the advantages and disadvantages of patent protection
Compared with copyright law, using patent law to protect computer software has very prominent characteristics: (1) Patent law can protect software products The core technical concepts and logical block diagrams. (2) Patent law emphasizes the protection of functionality. When software is combined with industrial products and manifests itself as the characteristics of a machine or product, or as a method to achieve a certain result, the software becomes the object of patent law protection. (3) Patented software products need to disclose all technical solutions, including core parts such as logic block diagrams. This can effectively prevent others from conducting software behaviors that have not been formally characterized and avoid unnecessary litigation. (4) Patent law encourages people to improve products or methods, which can promote the further development of software technology and adapt to the strong requirements for the improvement and development of digital technology in the Internet era. (5) The exclusivity emphasized by patent law is in sharp contrast to the limited exclusivity granted to authors by copyright law. It can not only greatly satisfy the exclusivity requirements of software rights holders, but also greatly mobilize the enthusiasm of rights holders to develop software.
(6) The statutory period of patent law is shorter than the protection period of copyright law, which is consistent with the average commercial life cycle of software. Shortening the period of exclusivity can encourage the software industry to work harder to develop new products to recover costs faster, and can increase the turnover speed of the social and economic cycle.
Although patent law has many advantages in protecting software, it cannot be denied that patents also have the following shortcomings in protecting software: (1) The examination time for invention patents required by the patent law is relatively long; The requirements for novelty are relatively high, so for software products with a short commercial life, applying for patent protection is not worth the gain. (2) Software patent examination has high technical requirements, and software involves various fields and is numerous, which requires examiners to have excellent computer expertise, which is difficult to achieve in practice. (3) There is a lot of prior art in software patents, but since the search system cannot know all the prior art of software, it makes it difficult for the patent examiner to make a judgment on the novelty standard of the application. (4) Although software can be patented, not all software can be protected by patent law. Since the boundary between pure computer software and inventions with computer programs is difficult to determine, it will inevitably lead to uncertainty in software patent applications. At the same time, the system for classifying software according to applicable industries also needs to be improved.
Therefore, for the legal protection of computer software, neither copyright law nor patent law can be used alone. It is impossible for any kind of law to completely protect software without defects. Only by combining copyright law, patent law, contract law, anti-unfair competition law and other laws can we make up for each other's shortcomings and achieve overall protection of software.
2. Overview of legislation on computer software review standards in the United States and Europe
The trend of expanding software patent protection will inevitably lead to revision of patent review standards in various countries. Although the effectiveness of the examination standards cannot be compared with the law, the degree of protection provided by the patent law to computer software often directly depends on the provisions of the examination standards. Therefore, when liberalizing computer software patent protection, the patent examination standards must first be revised.
(1) Revision of the U.S. Patent Examination Baseline
In February 1996, the U.S. Patent and Trademark Office officially issued a "Guidelines for the Examination of Computer-Related Inventions (Final Text)" , hereafter referred to as the new benchmark. The new benchmarks reflect the current formal U.S. policy on the patentability of inventions related to computer programs as well as trends in patent protection for computer programs. For patent applications for computer-related inventions, in Part 1V of the new standards, the main provisions for computer software patent applications are as follows:
1. A patent application for a computer-related invention is a patentable subject matter as long as it is actually used in a professional technical field.
2． Invention patents related to computer programs can be product (machinery or manufactured goods) invention patents or method (process) invention patents.
3. Among computer-related inventions, product inventions are hardware or a specific structure that is a combination of hardware and software.
4． The examiner shall presume that the inventor's patent claim is patentable if the following circumstances are met: A. Any computer or device that needs to be operated through a computer program or other forms of software is presumed to be a legal "machine"; B. Any "computer-readable memory" that can achieve specific functions in a specific way through a computer is presumed to constitute a legal "product"; C. Any series of operating steps that must be performed with the help of a computer are presumed to meet the statutory "process" requirements.
5. Any of the following circumstances will be considered non-patentable: a pure combination or arrangement of information that is independent of any entity; it contains information that represents creation or artistic expression and is attached to a known "machine-readable storage medium" "; "Information structure" that is independent of any entity and is not information or data that is not included in the actual composition of the computer; only programs or steps that control abstract consciousness or concepts.
The new standards also divide non-statutory object materials into two categories: "functional descriptive materials" and "non-functional descriptive materials".
Functional description materials include computer programs and databases. When a computer program is stored in a computer-readable storage, and a functional or structural relationship is established between the program and the storage that implements the program functions, then It will be considered as a statutory protected object under the patent law.
(2) The development of patent examination standards of the European Patent Office
The European Patent Office clearly clarified copyright law in the "Recommendation on the Directive on the Legal Protection of Computer Programs" published in 1989 It is the best choice and the main method to protect computer programs and denies the patentability of software. However, with the change in the United States' attitude toward software patent protection, the European Patent Office and some European countries have gradually changed their attitude and extended the scope of patent law protection to some inventions related to computer software. In 1985, the European Patent Committee promulgated new patent examination standards. It believes that if a subject matter that contributes to known technology meets the patent application conditions in other aspects, it cannot be denied that it meets the patent application conditions as a whole simply because it adopts the form of a computer program. , that is, if a computer-related invention has technical characteristics, it may obtain patent rights. However, the European Patriots have always had a negative attitude towards whether computer programs can obtain patent rights without being combined with hardware.
3. my country’s patent examination standards and modification suggestions for computer software
On March 10, 1993, the China Patent Office issued Order No. 4, and the "Patent Examination Guidelines" were officially released. . Among them, Chapter 9 provides corresponding provisions on the conditions for granting patent protection to computer software in the form of a special chapter. The "Examination Guidelines" stipulate that if the subject of an invention patent application containing a computer program can produce technical effects and constitute a complete technical solution, the patent right cannot be denied just because the invention patent application contains a computer program. It can be seen from this that the combination of the two elements of "technical solution" and "technical effect" is the criterion for determining whether to grant patent rights to inventions containing computer programs. This standard is basically similar to the principles of the 1981 "Patent Examination Standards" of the United States, and the conditions appear to be relatively relaxed.
The new "Examination Criteria" also lists several technical fields in which inventions containing computer programs may be patented: (1) Invention patent applications involving automated technological processes. (2) Invention patent applications involving improvements in computer internal operating performance. (3) Invention patent applications involving measurement or measurement processes. (4) Patent application for Chinese character encoding method and computer Chinese character input method.
However, the new "Examination Guidelines" also clearly point out that invention patent applications involving computer programs themselves or mathematical methods themselves cannot obtain patent rights, that is, "an invention patent application containing a computer program, if the subject matter of the invention only Whether it is the computer program or the computer program itself that is simply stored in a memory and recorded on a readable medium such as a tape or disk, the computer program itself cannot be patented because it is essentially a rule and method of intellectual activity."
At present, China has joined the WTO, which means that China must unconditionally accept the constraints of various multilateral agreements of the WTO and coordinate the provisions of domestic laws under WTO rules. In the face of the emerging international trend of strengthening software protection, China's revision of its patent law and patent examination guidelines is also a historical necessity. On August 25, 2000, the 17th meeting of the Standing Committee of the Ninth National People's Congress also revised the patent law. The second amendment was made. On April 12, 2004, the State Intellectual Property Office also issued Order No. 35, which specified the conditions, procedures and methods for electronic patent applications in detail. However, it is closely related to computer software patent authorization. The "Censorship Guidelines" have never kept pace with the development of the world. In order to better enable my country's patent application examination system to keep up with the pace of world development, the examination guidelines must be revised.
In order to adapt to the international software protection trend and learn from the legislative experience of patent examination in the United States and Japan, the author believes that China’s patent examination guidelines should be modified in the following aspects: (1) Expand software patents scope of protection.
Programs stored on computer-readable media are allowed to apply for invention patents, and inventions containing computer programs are clearly patentable objects. (2) Define the relationship between "the program itself" and "the rules and methods of intellectual activities". To amend the patentability issues involving computer programs or computer programs merely recorded on a carrier, the key is to explain the "program itself". (3) When reviewing an invention patent application containing a computer program, the review should mainly focus on the technical characteristics and practical value of the invention, with emphasis on the practicality of the invention. (4) Eliminate discrimination between different technical fields. The meaning of “technical field” should be further explained, which may involve certain specific fields, such as procedures related to business activity methods in the field of business management.
The development of the patent system always follows the pace of technological development. People cannot predict what impact future technological advances will have on the patent system. At present, the research on network commercial software in the technical field is developing rapidly. A large number of network-related software patent applications have been successfully applied for. Software rights holders have obtained the most practical economic benefits, but it has also brought about new problems in the balance between patents and social interests. Just like online copyright, when rights expand to the point where people are unable to make progress in using the Internet, legal protection becomes a shackle for social development. Therefore, correctly evaluating my country's software patent protection system and learning from the practices of developed countries is a crucial step in accelerating the development of my country's computer and related industries.
[Editor: Shu Sheng]
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