How to apply for a software patent?

How to apply for a software patent? Software general protection mode Intellectual property system has existed for hundreds of years, but computer software only appeared in 1960s. As a new intellectual product, how to protect it has been controversial for more than 20 years in the world. The United States has just begun to apply patent law to protect software. 1972, the Philippines took the lead in including software in the protection object of copyright law. The United States revised the copyright law twice in 1976 and 1980, confirming that computer software should be protected by copyright law. The Agreement on Trade-Related Aspects of Intellectual Property Rights of the World Trade Organization and the Copyright Treaty of the World Intellectual Property Organization both list computer software as the object of copyright law protection. Of course, some countries have formulated unique software protection systems according to the contents of copyright law and patent law, but it has basically become a general rule to protect computer software with copyright law. Article 3 of China's Copyright Law directly protects computer software as a type of work, and the Regulations on the Protection of Computer Software is also formulated according to the Copyright Law, which shows that computer software in China is protected by copyright law. Second, copyright law protects the defects of software. Copyright law protects the expression of works, not the ideological content. Due to the limitation of the protection scope of copyright law, the protection of some works is very pale. For example, advertising language, a short sentence, maybe only three or five words, can express an idea with high conciseness, catchy and impressive. This form of expression is more creative. Because the copyright law does not protect creativity, but only forms of expression, it is easy for others to imitate this creativity and change other words to achieve the same effect. Creative imitation is not shameful for the same industry, but it does not constitute infringement in copyright law, which is the embarrassment of copyright law. The development of general software goes through three steps: 1, function definition, 2, logic design and 3, coding. Let's take the special software specially written for a single user as an example. System analysts analyze according to the needs of customers. Those functions have ready-made technical solutions, and those technologies are not mature. We should organize personnel to tackle key problems. After writing the document, it will be handed over to the programmer to write the source code. This specific process includes: requirements analysis, system analysis, structure analysis, source code writing, testing and other necessary processes. Then there are at least two intellectual achievements in the process of intellectual creation: 1, technical scheme, 2, source code. Software reflects intellectual achievements more through technical schemes, which include design information such as organizational structure, processing flow, algorithm model and technical methods. This technical scheme embodies the scientific knowledge, methods and experience of solving problems, and mastering this technical scheme, while writing code programs is a relatively primary technical work and does not require too much technical level. Moreover, customers are concerned about whether the software function is enough to solve specific problems, and are not interested in whether the software coding is original. According to the law, the main contents of software copyright protection are computer programs and files. A program is a statement or instruction used directly or indirectly in a computer to achieve a specific result. They are symbol sequences composed of computer languages, which are called source codes. Software documents have a wide range of meanings, and the documents stipulated by law include the instructions for the use of the software, which are completely text. Software content document can be understood as the outline of source code, and a good document is even equivalent to source code. There are many softwares that are developed by individuals and do not write documents, so the source code is the main source code protected by copyright law. Non-professionals of source code don't know what it is, but it is also an article, except that words are a special computer symbol language. According to the scope of protection of copyright law, technical solutions that better reflect the intelligence level and software value are excluded from the protection of copyright law, which is the defect of copyright law to protect software. Intellectual property system protects intellectual achievements, which are intangible spiritual wealth. Software writing is also a highly intelligent creative process. According to the principle of intellectual property system, all its intellectual achievements should be included in the scope of protection, not just a part of them. 3. Patentability of software The definition of invention in the Patent Law is: "It refers to the technical scheme put forward by a technology developer for a product, method or improvement." There are two kinds of inventions, one is product invention and the other is method invention. Product invention is a technical scheme for people to develop various new products, new materials and new substances. Method invention is a technical scheme such as operation method, manufacturing method and technological process developed for manufacturing products or solving technical problems. The software product meets the requirements of the method invention. The essential conditions for obtaining an invention patent are "three natures": 1, novelty, 2, creativity and 3, practicality. Novelty refers to an invention for which a patent is applied. Before the filing date, no identical invention was published in domestic and foreign publications, publicly used in China or known to the public in other ways, and no one else applied to the Patent Office for the same invention. Creativity means that the invention has outstanding substantive characteristics and remarkable progress compared with the prior art before the filing date. Practicality means that it can be applied in industry, with practical benefits and positive effects. Judging from the three characteristics of obtaining invention patents, many softwares meet the requirements of applying for patents. Iv. The difference between copyright protection and patent protection 1, the content of protection is different from the form of copyright law protection, and patent law protects creative ideas. Copyright law protects the source code of software, and the innovation of technical scheme, the core content of software, can be patented and protected by patent law. Copyright law focuses on the protection of spiritual rights, while patent law is more suitable for the protection of economic rights. In this way, the combination of the two makes the software more fully protected. 2. The conditions for obtaining protection are different. Copyright is automatically acquired, and the time of acquisition is based on the time when the development is completed. Upon completion, the copyright is automatically obtained and protected by the copyright law. No matter how the software source code is written, copyright/copyright is automatically obtained and protected by copyright law. To obtain a patent right and be protected by the patent law, you need to actively apply to China National Intellectual Property Administration. Whether to grant a patent right needs to be examined by China National Intellectual Property Administration, and whether it meets the conditions for granting a patent right before deciding whether to grant a patent right. 3. The protection time of different invention patents is 20 years, counting from the date of application. However, the protection is that after applying for approval to obtain a patent right, the application for a patent for invention is cumbersome, and it usually takes about 3 years from application to obtaining a patent certificate. The software copyright protection period is 50 years, and it is protected by copyright law from the date of completion of development. Software has been protected by copyright law before obtaining patent right. Applying for a patent does not affect its protection by copyright law. You have enough patience to wait for patent approval. V. Trend of Software Patent Protection Although there is still a heated debate on whether software can be patented internationally, opponents believe that unrestricted patents will only affect innovation efforts. Controversy belongs to controversy, but developed countries such as the United States, Japan, and Europe have begun to revise their own patent examination guidelines and added many examination guidelines on business method software inventions. It can be considered that at present, the tripartite patent office no longer pays attention to the discussion of software patentability, but pays more attention to and discusses the specific judgment standard of software invention, that is, the second threshold of patent examination: patent three. The European Commission approved the controversial amendment to the EU Software Patent Directive, paving the way for the wide application of software patents in Europe. There are as many as 30 million software patents authorized by European countries (the data comes from the Internet and has not been verified), and there are more than 20 online shopping patents alone. Once some software is patented, it will be difficult for programmers to bypass it. They will face a patent minefield. Only by paying patent fees can they develop software. All companies must provide patent licensing fees for their software products. These companies can only make profits by issuing patent licenses. China enterprises have always been indifferent to intellectual property rights and paid no attention to protecting their own intellectual property rights. After China joined the WTO, foreign companies were stunned by waving intellectual property sticks. If they do not pay attention to protecting their intellectual property rights, there may be a similar situation in which large foreign enterprises occupy a dominant position in patent disputes. China also began to discuss the patent application for software. 1993, the Patent Office (now China National Intellectual Property Administration) issued a new patent examination guide, which relaxed the conditions for granting software patent protection. It lists the application scope of invention patents containing computer programs that can be patented. We can see that some software companies have started to apply for patents for the software they developed. It is said that Rising Company has applied for at least six patents at home and abroad.