A Study Of Substantial Requirements For Computer Software Patent

On the problem of patent protection for computer software, U.S.A, Japanand European have changed their attention. Now they pay more attention onpatent substantial requirements than patent eligibility. The penman considersthat in China we should rather reject software which has no utility, novelty orinventive step through rigid substantial requirements than discuss endlesslyon patent eligibility for software. This article first discusses the idea, types and technical character ofcomputer software. The penman considers that computer software andcomputer program has the same sense in patent system. Directed to types andtechnical character, this article brings forward a new and significantclassification for software in patent system. This article also draws outtechnical character—functionality, independence and engineeringcharacteristic. Then I review the utility, novelty and inventive step ofsoftware patent. Based on the profoundly comprehension of normalsubstantial requirements, I analyze and compare the trilateral examinationguidelines on computer-related inventions, refer to the introduction anddiscussion of scholars home and broad, contrapose Chinese patent law andexamination guideline, and ponder over the factors and standards we shouldconsider when we establish substantial requirements for software patent.Business method software is the specific kind of software, so this articlespecialize the substantial requirements for it.On utility, I consider that software which is developed is not forimplementing some kind of algorithm, but for solving some concrete problemconsequentially. A software invention has technical character or not dependson that the develop process adopts technical measures, uses natural rules andbrings about a further technical effect or not. On novelty, opening andtransmitting software by Internet belongs to disclosure by publications, soabsolute novelty standard should be applied to. In the matter of to what degreeshould the art be opened to the public, if only the object program is opened,while the peculiar algorithm in the software is not disclosed, it will not belongto "known by the public". In ascertaining non-obviousness, I hold that weshould focus our attention on ascertaining "a skilled person in the art". In theaspect of examining novelty and inventive step, there is a commonissue—how to ascertain "prior art". It's necessary for every country tocooperate on establish "computer software database" shared by every countryto solve this problem. For business method's utility, China should adopt theutility standard close to Japan and Europe's, just insist on technical character,that is patentable business method should be combined with computersoftware or network. It should apply computer system to control and manageinformation and bring about some useful effect. On evaluating inventive step,we should focus our attention on two points: the first is technical effect of aninvention;the second is how an invention has success with business to whatdegree.