A Study Of Patenting Software Related Business Methods

Business methods are always seen as rule and method of intellectual activity, not the patentable subject matter. Along with the rapid development of the internet and computer, however, many countries have a strong desire for patenting business methods and computer software.In order to protect the national interest and promote the scientific and technological progress, the Court of Appeals for the Federal Circuit completely eliminated the "business methods exceptions" and opened the gate of the business methods patent protection in State Street Bank & Trust Co. v. Signature Financial Group, Inc.in1998.Based on the internet, many business methods inventions implemented by computer appear as some kind of computer software. Therefore, business methods patent is also called the "Software Related Business Methods Patent", which includes innovative business methods and computer software or hardware system. So it is different with business methods as such and computer software as usual. Since the State Street Bank decision, Japan and European Union have also adjusted their patent policy and acknowledged the software related business methods patent. Many scholars still doubt about software related business methods patent and emphasized its negative influence right now, but the advantages of patenting business methods inventions should not be ignored. Moreover, the most important patent entities in the world such as United States, Japan and EU have acknowledged the software related business methods patent, even WIPO has also established the International Patent Classification about business methods (G06Q ) . Therefore, it can be said that software related business methods patent is inevitable.Software related business methods patent is also very vital to our Country. It is a very important tool for our Country to resist the patent standardization strategy used by developed countries, promote the development of E-Commerce in domestic industry and encourage domestic firms to compete with foreign companies in the global. Moreover, patent system in our country does not deny completely software related business methods patent. If being implemented by computer, and "uses technical means, solves technical problems, obtains technical effect", software related business methods will become the patentable subject matter. The SIPO has also awarded two patents about business methods to the CITI Bank in the form of product invention. It can be said that our country not only has the urgent requirement, but also has the legal resources and the practice basis. Therefore, we should not only focus the problem of "whether to award the software related business methods patent ", but pay more attention to how to improve the software related business methods patent system.There are two aspects in the standard of patent censorship. One is the qualificational patent requirement, i.e. judging whether an invention belongs to the subject of patent protection. The other one is the substantial patent requirement, i.e. judging whether an invention is useful, novel and inventive. The qualificational patent requirement of software related business methods patent differs in countries. In the United States, the qualificational patent requirement turns from technicality to practicality through the case of In re Alappat, State Street Bank and AT&T. The three monumental cases indicate that an invention can be patentable as long as it can produce useful, concrete and tangible result. On the contrary, Japan and EU still follow the requirement of technicality. An invention is patentable merely by applying laws of nature in Japan while technical character in EU.The substantial patent requirement also differs in countries. In the United States, the censorship of creativity adopts section-by-section standard. An invention is regarded to be inventive as long as one section of the technicality or business method is non-obvious. Japan adopts the integral standard in the censorship of creativity. An invention is regarded to be inventive as long as it is non-obvious as a whole. In EU, technical contribution is concentrated in the censorship of creativity. An invention is regarded to be inventive only if its technical section is non-obvious. Whether the business method is non-obvious or not is not in consideration when judging the creativity of an invention. Therefore, the excessively loose standard in the censorship of software related business methods patent in US not only confounds abstract concepts and real techniques but also lead to the production of substantive patents of low quality. On the contrary, the standard of censorship in EU is too strict to achieve anticipative effect. The patentees, however, get unreasonable monopolized power and ignore the substantial goal of commercial invention. Comparatively, the standard of censorship in Japan is more reasonable. The substantial requirement of applying laws of nature avoids the patent grant to abstract concepts. On the other hand, the adoption of integral standard of censorship matches the theoretical standards of creativity judgment much more. It also overcomes the shortage of creativity censorship in US and EU.Basing on level of development of the domestic related industries, we should learn the advantages of software related business methods patent system in developed Countries, better the patent examination standard and the patent examination procedure in our country in order to improve the patent quality. In order to better the patent examination standard, we should take two effective steps. On the one hand, we should establish Patent Classification about the software related business methods patent and persist in the traditional technical character requirement. Simultaneously, we should also learn the "two tests method" of Japan to help patent examiner judge the technical character requirement better in the practice. On the other hand, we should use the "industrial application" requirement instead of "utility" requirement to make the business methods invention has the technical character and pay more attention to the prior art on the Internet. Simultaneously, we should also use the "non-obviousness" instead of "prominent substantive features and represents a notable progress". Finally, we should give up the "technical contribution" standard and learn experience of Japan, which examines the invention as a whole. There are also two aspects of the improvement of patent examination procedure: One is the promotion of the patent examination steps. It means the definition and integration of the prior art should be noticed, and makes sure the comments of the novelty and inventive of business methods invention are objective and reasonable; the other is the improvement of patent grant procedure, it means to create the search obligations of applicants and the incentives for the third party to take part in the procedure to expand the scope of the prior art and improve the quality of patent examination.