The Patentable Subject Matter Standards Research Of The Computer Software

With the extensive use of computer technology, and the computer hardware and software separation from each other, the scale of computer software industry become more and more powerful, the computer software has far-reaching impacts in the social life. People observe the tremendous power of computer software, and also aware of the importance of legal protection of computer software. As the patent law may protect the "technical functionality" of computer software, various countries sought after the patent protection of computer software. However, computer software, as a patentable subject matter, its determining standard has been vague, unclear and uncertain. This makes the examiners and judges highly variable in determining whether the computer software is patentable subject matter, while the patent applicant does not have a standard to follow in writing the request. Urgently we need a clear, practicable set of criteria to measure, to understand, to judge whether the computer software can be a patented subject matter.Patentable subject matter means the invention-creations to be protected by the patent law. Any invention-creations patentable must cross two thresholds, the first threshold is the entry restrictions, namely: the invention-creations must be patentable subject matter, it could be the protect object of patent law; The second threshold is that patent application must meet the substantive terms of patent conditions, i.e. to judge the three features (novelty, inventiveness and practical applicability)。Patentable subject matter standards defined the scope of patentable subject matter in the horizontal direction; but the real conditions exclude the less innovative technical programs from the scope of patent law protection the in the depth direction. As the patent system is an economic system, therefore, determining the scope of patentable subject matter consistent with national conditions in the patent system, could better promote national economic development and technological progress. Similarly, computer software patentable subject matter also needs an appropriate standard, computer software patentable subject matter standards could encourage the innovation of computer software technology, could prevent exclusiveness of the natural laws, mathematical formulas and other abstract ideas, could facilitate the computer software patent examination and trial, could save judicial resources and social resources as well. Therefore, the establishment of computer software patentable subject matter standards also makes the patent system more perfect, and better service for the socio-economic and scientific.Comparing the computer software patentable subject matter standards of the United States, Japan and the European Union and other countries, it shows that there are some differences between these countries. The United States experienced an important development process of computer software patentable subject matter standards from the "technical" standards to "practical" standard and finally returns to the "technical" standards. After the Benson case in 1972, the United States developed the technical standards of "material status changes ", based on this principle and through a series of cases, US established several theories to determine the patentability of computer software, thinking process theory, two-step testing theory, the whole theory etc. After the whole theory, US applied a new standard in the Alappat case - practical standard, in 1996 US further emphasizes the practical principle of the patent in the"The examining guidelines for computer-related inventions". In the sentence of the State Street Bank & Trust Co. Case and the AT & T Corp.; Amazon v. Barnes & Noble case, both confirmed the patentability of business computer software, the USPTO examining guidelines provided further judicial confirmation. CAFC's policy further defined: as long as any computer software is functional (practical utility is essential), could produce concrete, useful and tangible results (concrete, useful and tangible result), and to meet the novelty and non-obviousness standard, then it could be "machine", "structure" or "create" patentable. However, in the Bilski case ruling in 2008, US came back to the "technical" standards and emphasized "material status transition" technical standards again. Japanese has always been positive in computer software patent protection; therefore, the Japanese determining standard of computer software patentable subject matter is highly consistent with the United States. The EU patent protection for computer software is more cautious and conservative, and always applied the "technical" standards, while in examination practice, they apply such "technical" standards more stringent than US and Japan. In the EPO current examination practice, computer software-related inventions patentable subject matter is no longer entangled, but to judge the inventive step. However, EPO is still quite strict in examining the inventive step, only if a computer software-related invention solve some technical problems, has obvious technical characteristics and resulting in technical contribution, the application then could be granted a patent.By comparing legal regulations of different states and the actual situation in our country, we can conclude that computer software patentable subject matter standards should be "technical" and "practical" combine standards. Because "technical + practical " standards is more consistent with the characteristics of the computer software itself, Computer software is different from the tradition technical solutions, computer software innovation may be more embodied in its "practicability", because computer software-related inventions generally are not high degree innovatory "technology", If an industrial process control technology introduced computer technology, the computer software code may be very simple, but it might increase the efficiency dozens or hundreds of times. Therefore, It is irrational to emphasize the"technical"standards one-sided. The use of "technical + practical" combine standards could better protect the computer software technology; promote scientific and technological progress and the software industry innovation.