商业方法专利的实质审查标准研究
发布时间：2018-11-23 12:43
【摘要】：商业方法的可专利性问题一直饱受争议,始终无法在专利制度领域争取到稳定的一席之地,直到信息技术走向成熟化、电子商务日益繁荣、计算机软件的可专利性得到法律的确认等客观外部环境有所改善,才逐渐扭转这种局面,这是专利客体范围的又一次扩张。由此,商业方法是否具有专利主题地位的争论进一步上升到了专利实质审查阶段,实现了能否获得专利到如何获得专利的转变,制定何种实质审查标准更能够激励商业方法专利创新成为焦点,这也是笔者在文中尝试解决的核心问题。本文在界定商业方法专利的内涵与外延、分类、特征、可专利性等基本理论的基础上,探究其实质审查标准的域外演变历程,同时结合国内的制度发展现状,为我国商业方法专利在实用性、新颖性和创造性审查中出现的问题总结有益借鉴经验。其中,专利审查的客观条件、审查人员的素质要求、具体审查标准与审查程序等缺陷是商业方法专利实质审查阶段暴露出的最主要的问题。鉴于我国制度现状,借鉴国外实践经验,商业方法专利应当坚持以“技术特征”作为基石来适当调整它的实质审查标准。此外,在解决商业方法专利“三性”审查标准中存在的具体问题时,建议遵循以下原则以防止和限制此类专利的过度垄断和泛滥：是坚持以鼓励和保护知识产品创新为核心理念；二是坚持实质审查标准的法定性；三是坚持专利审查标准适用的相对性性与绝对性；四是坚持“创造性”作为实质审查的重点。商业方法专利是商品经济繁荣和技术革新的产物,最早出现于美、日、欧等发达国家,在这些国家积极推行对外扩张的专利政策和专利制度全球化的国际背景下,商业方法专利问题也在我国引起关注和热议。从宏观角度出发,商业方法专利制度的确立不仅关乎一国民族利益,也是专利制度发展的大势所趋。目前,专利的实质审查标准已成为把控商业方法专利开放尺度的门户,需要兼顾商业方法专利权人的垄断权与社会公众的合理需求之间的利益平衡,同时也要警惕发达国家利用技术优势可能对国内产业造成的专利威胁。
[Abstract]:The issue of patentability of business methods has been controversial and has been unable to secure a stable place in the patent system until information technology matures and e-commerce flourishes. The patentability of computer software has been improved by law and other objective external environment, which has gradually reversed this situation, which is another expansion of the scope of patent object. As a result, the debate on whether business methods have the status of patent subject matter has further risen to the stage of patent substantive examination, which has brought about the transition from whether a patent can be obtained to how to obtain a patent. What kind of substantive examination standard can stimulate the innovation of business method patent becomes the focus, which is also the core problem that the author tries to solve in this paper. On the basis of defining the connotation and extension, classification, characteristics, patentability and other basic theories of business method patent, this paper probes into the extraterritorial evolution course of its substantive examination standard, and at the same time combines with the present situation of domestic system development. This paper sums up useful experience for the practical, novelty and creative examination of business method patent in our country. Among them, the defects of patent examination, such as the objective condition of patent examination, the quality requirement of examiner, the concrete examination standard and the examination procedure, are the most important problems exposed in the stage of substantive examination of business method patent. In view of the present situation of our country's system and the experience of foreign countries, the commercial method patent should insist on "technical characteristics" as the cornerstone to adjust its substantive examination standard properly. In addition, in addressing specific problems in the "three-sex" criteria for the review of business method patents, It is suggested that the following principles should be followed in order to prevent and limit the excessive monopoly and proliferation of such patents: to adhere to the core idea of encouraging and protecting innovation of intellectual products; The second is to insist on the legal nature of the standard of substantive examination, the third is to insist on the relativity and absoluteness of the application of the standard of patent examination, and the fourth is to insist on "creativity" as the focus of substantive examination. The business method patent is the product of the prosperity of commodity economy and technological innovation. It first appeared in developed countries such as the United States, Japan, Europe and other developed countries. In the international context of these countries actively pursuing the patent policy of foreign expansion and the globalization of patent system, The patent problem of business method also causes the concern and the hot discussion in our country. From the macro point of view, the establishment of the patent system of business methods is not only related to the national interests of a country, but also the general trend of the development of the patent system. At present, the standard of patent substantive examination has become the gateway to open the control of business method patent. It is necessary to balance the interests of the patentee of business method with the reasonable needs of the public. At the same time, it is necessary to guard against the patent threat that developed countries may cause to domestic industry by utilizing technological advantages.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.42
本文编号：2351663
[Abstract]:The issue of patentability of business methods has been controversial and has been unable to secure a stable place in the patent system until information technology matures and e-commerce flourishes. The patentability of computer software has been improved by law and other objective external environment, which has gradually reversed this situation, which is another expansion of the scope of patent object. As a result, the debate on whether business methods have the status of patent subject matter has further risen to the stage of patent substantive examination, which has brought about the transition from whether a patent can be obtained to how to obtain a patent. What kind of substantive examination standard can stimulate the innovation of business method patent becomes the focus, which is also the core problem that the author tries to solve in this paper. On the basis of defining the connotation and extension, classification, characteristics, patentability and other basic theories of business method patent, this paper probes into the extraterritorial evolution course of its substantive examination standard, and at the same time combines with the present situation of domestic system development. This paper sums up useful experience for the practical, novelty and creative examination of business method patent in our country. Among them, the defects of patent examination, such as the objective condition of patent examination, the quality requirement of examiner, the concrete examination standard and the examination procedure, are the most important problems exposed in the stage of substantive examination of business method patent. In view of the present situation of our country's system and the experience of foreign countries, the commercial method patent should insist on "technical characteristics" as the cornerstone to adjust its substantive examination standard properly. In addition, in addressing specific problems in the "three-sex" criteria for the review of business method patents, It is suggested that the following principles should be followed in order to prevent and limit the excessive monopoly and proliferation of such patents: to adhere to the core idea of encouraging and protecting innovation of intellectual products; The second is to insist on the legal nature of the standard of substantive examination, the third is to insist on the relativity and absoluteness of the application of the standard of patent examination, and the fourth is to insist on "creativity" as the focus of substantive examination. The business method patent is the product of the prosperity of commodity economy and technological innovation. It first appeared in developed countries such as the United States, Japan, Europe and other developed countries. In the international context of these countries actively pursuing the patent policy of foreign expansion and the globalization of patent system, The patent problem of business method also causes the concern and the hot discussion in our country. From the macro point of view, the establishment of the patent system of business methods is not only related to the national interests of a country, but also the general trend of the development of the patent system. At present, the standard of patent substantive examination has become the gateway to open the control of business method patent. It is necessary to balance the interests of the patentee of business method with the reasonable needs of the public. At the same time, it is necessary to guard against the patent threat that developed countries may cause to domestic industry by utilizing technological advantages.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.42
【参考文献】
相关期刊论文 前4条
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3 刘永沛;;商业方法专利:理论与实践[J];网络法律评论;2010年01期
4 张玉敏;谢渊;;美国商业方法专利审查的去标准化及对我国的启示[J];知识产权;2014年06期
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