[Keywords:] computer software; Patent protection; copyright protection
[About the author] Xu Li, a lecturer at the School of Humanities, Quanzhou Normal University, holds a master's degree in law; Lian, cadre of personnel department of Quanzhou Normal University, Quanzhou, Fujian 362000.
[China Library ClassificationNo.] d923.42
[Document ID ]A
[ArticleNo.]1672-2728 (2006)12-0166-03
How to protect computer software? Historically, protection was achieved through copyright law, but the protection of copyright law has its inherent defects. With the development of the new situation, countries begin to protect computer software in patent legislation. From the comparison between copyright protection and patent protection, it can be seen that patent protection of computer software is very necessary and feasible, which is the world development trend of computer software protection.
First, the feasibility analysis of patent law to protect computer software
(A) Analysis of the advantages and disadvantages of copyright protection
From the object of copyright law protection and the characteristics of computer software works, it is an inevitable choice to protect software with copyright law. Under the existing intellectual property legal system, software protected by copyright law has the following advantages:
1. The automatic protection principle in the copyright law enables the software to be protected almost without any special legal procedures, and enables the computer software to be protected in time.
2. The acquisition of software copyright does not need innovation, but only "originality". Even the same idea and the same algorithm can be realized in different ways. As long as it is "original", you can own the copyright.
3. Copyright law gives the obligee the greatest right to exclude copying. The main form of software infringement is copying. Although there are many forms of copying on the network, the software owner still has the right to prohibit others from copying in any form without permission.
But copyright protection has a characteristic, that is, it only protects the expression form of computer software, not its logical block diagram and thought. In fact, the logical block diagram and idea are more important than its expression form, because many people can express the same idea in different forms. It takes a lot of time to form the logical block diagram and ideas, and it will not be conducive to innovation if it is not protected. Therefore, the protection of computer software by copyright can be said to be incomplete.
(b) Analysis of advantages and disadvantages under patent protection
Compared with copyright law, protecting computer software with patent law has outstanding characteristics: (1) Patent law can protect the core technical ideas and logical block diagrams of software products. (2) The patent law emphasizes the protection of functionality. When software and industrial products combine and show the characteristics of machines and products or the methods to achieve certain results, software becomes the object of patent law protection. (3) Patented software products need to disclose all technical solutions, including logic diagrams and other core parts, which can effectively prevent others from engaging in software behavior without formal characterization and avoid unnecessary litigation. (4) The Patent Law encourages people to improve their products or methods, which can promote the further development of software technology and meet the strong requirements for the improvement and development of digital technology in the network era. (5) The exclusivity emphasized by the patent law is in sharp contrast with the limited exclusivity of the works given to the authors by the copyright law, which can not only greatly satisfy the exclusive claims of the software owners, but also greatly mobilize the enthusiasm of the owners to develop software. (6) The statutory period of patent law is shorter than that of copyright law, which is consistent with the average commercial life cycle of software. Shortening the exclusive period can promote the software industry to work harder to develop new products to recover costs faster, and can improve the turnover rate of social and economic cycles.
Although the patent law has many advantages in protecting software, it is undeniable that patents also have the following defects in protecting software: (1) The patent law takes a long time to examine invention patents, and requires higher novelty, which is not worth the loss for software products with short commercial life. (2) Software patent examination requires high technology, involving many fields and a large number of software, which requires examiners to have excellent computer professional knowledge, which is difficult to do in practice. (3) There are many prior technologies in software patents, but the retrieval system cannot know all the prior technologies, which makes it difficult for Patent examiners to judge the novelty standard of the application. (4) Although software can be patented, not all software can be protected by patent law. Because the boundary between pure computer software and inventions with computer programs is difficult to determine, it will inevitably lead to the uncertainty of software patent application. At the same time, the system of classifying software according to applicable industries also needs to be improved.
Therefore, the legal protection of computer software can not only use copyright law, but also use patent law. No law can completely protect software from defects. Only by combining copyright law, patent law, contract law and anti-unfair competition law can we learn from each other and realize the overall protection of software.
Two, the United States and Europe * * * legislation on computer software review standards.
The expanding trend of software patent protection will inevitably lead to the revision of patent examination standards in various countries. Although the effectiveness of review benchmark cannot be compared with that of law, the degree of protection of computer software by patent law often depends directly on the provisions of review benchmark. Therefore, when the patent protection of computer software is released, the patent examination benchmark should be revised first.
(A) the revision of the United States patent examination standards
1February, 1996, the United States Patent and Trademark Office officially released the guidelines for the examination of computer-related inventions (final text), hereinafter referred to as the new benchmark. The new benchmark reflects the current formal policy of the United States on the patentability of computer program-related inventions and the development trend of computer program patent protection. For patent applications for computer-related inventions, in the 1V part of the new standard, the provisions on patent applications for computer software mainly include:
1. An application for a patent for a computer-related invention belongs to a patentable subject as long as it is actually used in the professional technical field.
2. Invention patents related to computer programs can be products (machinery or finished products) or methods (processes).
3. In computer-related inventions, product invention is the concrete structure of hardware or the combination of hardware and software.
4. The examiner shall assume that the inventor's patent requirements are patentable under any of the following circumstances: a. Any computer or device that needs to be operated by computer programs or other forms of software is presumed to be a legal "machine"; B any "computer-readable memory" that can realize specific functions in a specific way through a computer is presumed to constitute a legal "product"; C All a series of operation steps that must be carried out by the computer are presumed to meet the legal requirements of the "process".
5. In any of the following circumstances, it shall be regarded as unpapatentable: pure information combination or arrangement independent of any entity; It already contains information representing creation or artistic expression and is attached to a known "machine-readable storage medium"; Information or data that is independent of the "information structure" of any entity and is not in the substantive composition of the computer; A procedure or step that manipulates only abstract consciousness or concepts.
The new standard also divides non-statutory object materials into "functional explanatory materials" and "non-functional explanatory materials". Functional description materials include computer programs and databases. When a computer program is stored in a computer-readable memory, and a functional or structural relationship is established between the program and the memory that realizes the function of the program, it will be considered as the legal protection object of the patent law.
(b) Establishing the patent examination benchmark of the European Patent Office.
In the Directive Proposal on Legal Protection of Computer Programs published by 1989, Europe clearly stated that copyright law is the best choice and main method to protect computer programs, and denied the patentability of software. However, with the change of American attitude towards software patent protection, the European Patent Office and some European countries have gradually changed their attitudes, extending the protection scope of patent law to some inventions related to computer software. In 1985, the European Patent Committee issued a new patent examination standard, which holds that if the subject matter that has contributed to the known technology meets the requirements of the patent application in other aspects, it cannot be denied that it meets the requirements of the patent application as a whole just because it is in the form of a computer program, that is, computer-related inventions may be patented if they have technical characteristics. However, Europe has always held a negative attitude towards whether a computer program can be patented without combining with hardware.
Three, China's computer software patent examination standards and revision suggestions
1993 March 10, the Chinese patent office issued the No.4 order, and the Patent Examination Guide was officially released. Among them, the ninth chapter makes corresponding provisions on the conditions for granting patent protection to computer software in the form of a special chapter. The Examination Guide stipulates that if the theme of an application for a patent for invention containing a computer program can produce a technical effect and form a complete technical scheme, the patent right cannot be denied just because the application for a patent for invention contains a computer program. It can be seen that the combination of "technical scheme" and "technical effect" is the standard to judge whether to grant a patent right to an invention containing a computer program. This standard is basically similar to the principle of American patent examination standard (198 1), and the conditions are relatively relaxed.
At the same time, the new "Examination Benchmark" also lists several technical fields in which inventions containing computer programs may be patented: (1) Invention patent applications involving automatic technical processing. (2) An application for a patent for invention involving the improvement of the internal operation performance of a computer. (3) An application for a patent for invention involving measurement or measurement process. (4) Chinese character coding method and computer Chinese character input method patent application.
However, the new review guide also clearly points out that an application for a patent for invention involving a computer program itself or a mathematical method itself cannot be granted a patent, that is, "an application for a patent for invention containing a computer program cannot be granted a patent if its invention theme is only a computer program or a computer program itself stored in a memory and recorded on a readable medium such as a tape or a disk, because the computer program itself is essentially a rule and method of intellectual activities".
At present, China has joined the WTO, which means that China will unconditionally accept various multilateral agreements of the WTO and make the provisions of its domestic laws consistent under WTO rules. Facing the international trend of strengthening software protection, it is also a historical necessity for China to revise its patent law and patent examination guide. On August 25th, 2000, the 9th the National People's Congress Standing Committee (NPCSC) Conference17th also revised the Patent Law for the second time. On April 25th, 2004,No. 12, China National Intellectual Property Administration also issued Decree No.35, which stipulated in detail the conditions, procedures and methods of electronic patent application. In order to make China's patent application examination system develop in step with the world, the examination guide must be revised.
In order to adapt to the international trend of software protection and learn from the legislative experience of patent examination in the United States and Japan, the author thinks that China's Patent Examination Guide should be revised in the following aspects: (1) Expand the scope of software patent protection. Allow programs stored in computer-readable media to apply for invention patents, and make it clear that inventions containing computer programs are patentable objects. (2) Define the relationship between "procedure itself" and "rules and methods of intellectual activities". To correct the patentability of computer programs or computer programs only recorded on carriers, the key is to explain "the program itself". (3) When examining an application for a patent for invention containing a computer program, the technical features and practical value of the invention should be mainly examined, and the practicality of the invention should be emphasized. (4) Eliminating discrimination against different technical fields and further explaining the connotation of "technical field" can involve some specific fields, such as procedures related to business activities and methods in the field of enterprise management.
The development of patent system always follows the pace of technological development, and people can't predict what impact the future technological progress will bring to the patent system. At present, the research of network business software in the technical field is developing rapidly. A large number of network-related software patents have been successfully applied, and the software owners have obtained the most tangible economic benefits, but it has also brought new problems of balancing the interests of the patentee and the society. Just like online copyright, when the rights swell to the point where people can't use the Internet, legal protection becomes the shackles of social development. Therefore, a correct evaluation of China's software patent protection system and learning from the practices of developed countries is a key step to accelerate the development of China's computer and related industries.
[Editor: Shu Sheng]
Reprinted source:/1/view-248736.htm.
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