[Patent] How to Protect Computer Software Design Ideas

In view of software innovation, the first choice may be to protect software copyright. However, because software copyright can only protect the specific expression of software works, but not the innovative design ideas behind the software, the software that can achieve the same function can be realized in different expressions through various programming software, so the scope of intellectual property protection obtained through software copyright is extremely limited. In view of this, people began to try to use the patent system to effectively protect the design idea behind the software, and in recent years, hundreds of thousands of patent applications and authorized patents have appeared. However, when the obligee righteously wants to stop others' patent infringement with his own patent right, he finds that he has to face a very embarrassing situation. First of all, if the right holder obtains a software-related patent, his claim protects a technological method. As long as this method solves the technical problems and can produce beneficial technical effects, the patent can of course be granted. However, according to Article 1 1 of the Patent Law, for method patents, others can only be prohibited from using the patented method without authorization, or using, promising to sell, selling or importing products directly obtained according to the patented method without authorization. So there will be such a problem in practice. For example, if the patent claims protect a camera anti-shake method realized by software, then it is the mass consumers who use the patent method, not the manufacturers who apply the method to camera products. Obviously, it is unrealistic to prohibit mass consumption from using camera products that are legally purchased and patented. On the other hand, if the manufacturer is sued for infringement of products containing patented methods, there is a major defect in the legal basis, that is, the camera products are obviously not directly obtained according to patented methods, but only loaded with programs using patented methods. Therefore, the method patent obtained by adding software to existing products to realize new functions without changing the hardware structure can hardly be effectively protected in practical situations. Although China National Intellectual Property Administration considered the above situation, and foresightedly stipulated the specific writing method in the review guide, that is, every step of the method required to be protected was written into the claim in the form of "virtual module", thus "transforming" the substantive method patent into a superficial product patent to solve the above dilemma faced by the method patent. However, because of what this "virtual module" points to (the software itself? Solidified hardware of meaningful software? ) is very vague, which will lead to the confusion of judges in determining the scope of patent protection. In fact, China National Intellectual Property Administration himself failed to give a clear explanation of the meaning of this "virtual module". In judicial practice, so far, no judicial trial case has given a clear judicial explanation of the connotation of this "virtual module". To sum up, how to obtain effective intellectual property protection for a large number of technological innovations completely realized by software without basically changing the existing hardware has become an increasingly important issue. Moreover, for hundreds of thousands of related patents that have been authorized, they are faced with the embarrassing situation of becoming "a dead letter" because they cannot obtain effective patent protection.