A Study On The Patent Of Commercial Method In The View Of International Law

Under current international intellectual property law, in principle, all inventions, whether products or processes, in all fields of technology, are patentable. However, there are69countries expressly excluding business method and64countries excluding computer software from patentable subject matter. In spite of the rapid development of science and technology, the patentability of such emerging subject matter as business method and computer software, which is different from the traditional invention based on material carrier, is highly debatable. Interestingly, developed countries and regions as US and EU which have great influence on the international harmonization of patent law all recognize the patentability of business method. This is based on not only the patentability of business method under international law, but also the great economic and social value of business method as patentable subject matter.There are obvious differences between business method and other subject matter, so we cannot just simply accept all kinds of business method as patentable subject matter. Instead, we should raise some restrictions when determining whether a certain business method is patentable. What kind of restrictions to employ is negatively correlated to the importance of business method in certain country’s economy and the quality and capacity of the country’s patent administration. To put it in another way, the more important business method is in a country’s economy and the higher the quality and capacity of the country’s patent administration is, the fewer restrictions there will be in the patentability of business method. After the Bilski case, US abolished the "machine and transformation" test as the sole test and adopted the more flexible standard, which reflected the great importance of business method in US’s economy and the high quality and capacity of US’s patent administration. After2000, EU also accepted business method as patentable subject matter and adopted the "technology related principle" to recognize the patentability of business method in fields of technology. China’s patent law has no specific stipulation on the patentability of business method. But based on the research of patent administration, it is found that China adopts a standard more or less the same as EU’s.Combing through the rules and principals of international law, this thesis makes clear that TRIPS Agreement does not expressly exclude business method from the scope of patentable subject matter. Consequently under the harmonization of TRIPS Agreement, US, EU and China independently adopt different systems of business method. Moreover, this thesis explains the rationale and limitation of the protection of business method patent from the perspective of economics. Finally this thesis makes some suggestions for the business method system in China based on the developing trend of business method in international society, the particular nature of business method and the practical situation of China.