Research On Judgment Standard For Patentable Subject Matter Of Software

With the development software technology, the limitations of copyright protection, More and more countries open the door of patent protection to computer software. Functional properties of computer software lead the software patent in full bloom rapidly in the fertile soil of the patent system.In the meantime, the traditional technologies don’t meet the new era demand, which made unprecedented challenges for Patentable subject matter. In response to this situation, some developed countries and regions like the United States have expanded Patentable subject matter, let some of the new objects into the scope of Patentable subject matter. But, patentable subject matters standard must not be because of its expansion needs too lenient. Otherwise, the Patent system will not protect the interests of patent holders well, and will bring some negative impact. So, we should impose some appropriate restrictions when expand the Patentable 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. 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, and could save judicial resources and social resources as well.Through the study of foreign expansion and limits on the scope of the patentable subject matter standard, this paper mainly analysis the software patentable subject matter standard in America and Europe, and the current situation in China and the improvement. 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. 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.This article divided into five Parts.The first chapter introduces the concept of the patentable subject and software under the rules of patent law, especially the particularity of software as patentable subject matter.The second chapter introduces patent subject theory of the software patentable subject; which can be as the theoretical basis of the following research.The third chapter researches the expansion of patentable subject matter under the conditions of new technologies, the situation of the expansion in the United States and European Union, that through this chapter, patent is of great expansibility in the new era.The fourth chapter researches the limitations of the software scope of patentable subject matter in the United States and Europe based on the analysis of unlimited expansion restricted software patent theme. The contents of the expansion of patentable subject matter:why should its limitations, and how it should be given the limits to the Patent system more conducive to the implementation of, and conducive to social development.The fifth chapter combines the actual situation of patent system in China, analyzes the status of Patentable subject matter and the development prospects and to make recommendations based on China national conditions based on expansion and restrictions on foreign patentable subject matter standard.