Research On US Nonobviousness Examination Standard For The Software Patent And For China's Reference

Nowadays the Unite States of America is the bellwether of the world software industrial. US patent policy has made great contribution to gaining such position. Thus all the world has been concerning its patent policy . However, for a long time before the case of State Street Bank in 1998, the nonobviousness examination standard of computer software patent was not paid attention to. What people concerned was the question of whether computer software is proper subject matter for patentability. Until the United States Patent and Trademark Office (USPTO) endorse a great deal of business method related software patents, criticisms for the nonobviousness examination standard of software patent of America was put forward by the domestic and international theoretical circle. However, these criticisms stay mostly in surface, and do not go to the source of problem. For this problem, if the discussion only focus on the legislation of America, partial conclusion will be inevitably caused. The USA belongs to the Common Law System, we should start from its historical development and precedent comparison when we study it.The establishment of USPTO's nonobviousness examination standard for the software inventions experience a tortuous process. The primary standard was vague. Until later the "means-plus-function" disclosure format made by the Court of Appeals for the Federal Circuit (CAFC), the Examination standard was formally established. However, the core technology can not be described in such disclosure format in most cases. In reality, the software patent were endorsed without being examined by the analysis of obviousness. It is virtually novelty that replaced nonobviousness.Although USPTO has substituted novelty for nonobviousness, this did not bring negative influence for the development of US software industry. On the contrary, it made the software industry become a remarkable factor that promoted the development of US economy. The reason lies in the conformity between the function of the patentpolicy and encourage mechanism of the patent system, and the compliance with the law of technical development.The software industry of our country is developing. We should analyze US experience, and draw lessons from it purposefully, then adapt the out-of-date understanding of technology, and utilize the patent policy flexibly, in order to promote the development of the software industry of our country.