| Business methods are traditionally unexceptionally treated as rules and methods for intellectual activities under all patent law systems around the globe and thus are excluded from patent protection. However, with the increase of importance of the software industry and rapid progress of e-commerce, such traditional legal approach is confronted with big challenges. Accordingly, new considerations have been given to the patentability of online business methods.Part One of this thesis is "Introduction", bringing first a brief introduction of the basic information of online business methods. Meanwhile, this Part points out that the development of e-commerce over latest years has brought about tremendous influence to the intellectual property law system. The patentability of online business methods is such an evidence.Part Two mainly introduces the business methods patenting practice in the United States. Following a brief introduction of relevant legal provisions in the United States patent laws, the thesis then turns onto discussions of two well-known cases which have been tried by the Court of Appeals for the Federal Circuit in 1998 and 1999 respectively. These two cases, for the first time, admitted the patentability of business methods, which resulted into vast scale discussions and arguments within the American legal circle and led to appearance of a series of policies and measures by the United States Patent and Trademark Office (USPTO).Part Three is focused on introduction and appraisal of reactions in response to American practice from some major countries from other parts of the world, including Japan, European Union and Canada. These countries and regions have, to certain extent respectively, amended their patent laws and examination guidelines after they saw the door open for patentability of business methods in America, so as to answer the global technical competition aroused by the United States and follow the development trend of software industry and e-commerce. At the end of this Part we discussed the cooperation between the United States, Japan and European Union on business methods patenting practice, concluding that patentability of online business methods is a general trend among the developed countries.Part Four starts to study the possibility of patentability of online business methods under the legal framework of our country. First, a comparative study is made among the protection means of patent, copyright and business secret, concluding that patent protection for such business methods is completely necessary. Then, for the purpose of proving that business methods are statutory subject matter under our country's patent law, the "technical character" of such methods is inspected. Based on the forgoing analysis, the thesis moves on to discuss the applicability of patent examination requirements of usefulness, novelty and creativity and points out that the requirement of creativity shall be strictly followed as a priority in examining business method patents.Part Five mainly focuses on some practical issues which we may encounter in business methods patenting practice in our country. First come the industry restrictions upon patent statutory subject matters which are imposed by the Examination Guidelines, which denies the patentability of inventions from commercial areas. Such industry discrimination constitutes a major obstacle for patentability of online business methods. Then comes the issue of prior art search in patent examinations. Since online business methods are completely new to us, relevant prior art information and documentation is relatively rare. This turns out to be another unfavorable factor to patentability of business methods. Finally, the global competition environment should be taken into consideration in our country's decision-making of when and how to open such patentability gates. In brief, we shall approve the patentability of business methods in a proper time and appropriate manners. Only in this way can we prevent any detrimental... |
