Patentability Of Computer Software

The naissance of computer bring to the world not only the development of technology but also thinking on how to protect computer software. After many years of being refused to be protected by patent law, computer software became patentable subject matter in the U.S., hence, Japan and European Union (EU) also accept the patentability of computer software. As a country to play an important role in the age of information, China should offer a positive answer to the question whether computer software is sufficient to be the subject matter patentable. But the followed questions have to be made clear at first: What causes patent law to protect computer software? How did the U.S., Japan and EU change their opinions from disagreeing to agreeing that computer software is patentable? Where can we find the reasonableness of computer software patentability? What are differences between computer software technology and traditional industrial technologies on the examination of novelty, creativity and usefulness? What countermeasures should we take against the fact that main developed countries have been protecting computer software through patent law?This paper is divided into four parts.The 1^st part is "looking back the history of computer software and it's legal protection." Copyright law is the primary mode of protecting computer law, meanwhile, business secret law, contract law, trademark law and competition law also provide protection for computer software, but these protection modes above all have inborn defects on protecting computer software, they can't provide enough protection for "ideas" of computer software, while patent law can do it. As for patent law, what computer software purport to be is computer program.The 2^nd part is "the opinions of main developed countries on computer software's protection by patent law." Having been aware of the importance of protecting "ideas" of computer software, and to conquer the defect of traditional legal protection modes of computer software, the U.S., Japan and EU all tend to put computer software into the scope of patentable subject matters available under the patent laws.The 3^rd part is "the analysis regarding the patentability of computersoftware."First, the author analyzes the reasonableness of computer software as a patentable subject matter from three angles of view, viz. internal causes for computer software technology, legal philosophy and economics.Internal causes for computer software technology: Software, generally, has been considered as the unpatentable subject matter mainly because the software algorithm was taken inappropriately as a mathematical algorithm. In fact, the software algorithm can be classified to theoretical algorithm and practical algorithm. The former, as an abstract "idea", nearly equals to a mathematical algorithm and should be excluded from the protection of patent law, but the latter, doesn't equal to a mathematical algorithm, but a technological program, which can be protected by patent law. As another internal cause for computer software technology, the evolution of the mode of development of computer software makes it necessary to protect the computer software by patent law.Legal philosophy: From the re-understanding of Locke's "Labour Theory" and the understanding of "Science Development Theory" we have discovered the justice of the reasonableness of computer software as a patentable subject matter.Economics: Unless the society can gain more interests than social cost from patent system, it won't protect any invention by patent law. The theory can also be applied to the research of patentability of computer software. As far as computer software patent system is concerned, the society can be simply divided into three parts: the developers of computer software, competitors and consumers. After analyzing the profit and loss of the three under computer software patent system, we can conclude that granting computer software patent right is feasible in economics.Second, the author analyzes the three characteristics of computer software patent, viz. novelty, creativity and usefulness.The 4th part is "the status in quo of computer software's patent protection in China, and three suggestions are offered concerning countermeasures we should take.