On: Sun may Zhou (Beijing law firm Nixon Peabody) Site Date :2007-4-9 18:14:45
Model in determining the issue of protection of computer programs, the number one program has been in the United States, producing a dominant position. Primary consideration to the copyright protection can be generated automatically, and existing mature in the world of international protection mechanisms, the United States copyright law which established the first protected software legal mode, and spared no effort in the world Tuixing its established position. In the mid-80s, Japan, Brazil, France and other countries trying to address the characteristics of the computer, worth a special protected mode design, which resulted in U.S. pressure and influence, have to change his course back to the United States to promote the tide came.
If the patent protection of software copyright protection and legal systems, in-depth study, you will find software to protect existing gaps in the legal system can not provide adequate protection for software. Therefore, we believe, should make full use of existing laws (such as patent law), especially the technology of the computer program algorithm for three-dimensional protection, and even the software in the field of industrial property protection for specific legislation to try. Here are some preliminary thoughts on.
The continuous development of software in information technology today has become one of the main means of technological development, its wide range of very different. Our country, "the use of computer software copyright registration of software classification and coding guide" will be the software is divided into three categories, namely, system software, support software and application software, under which further divided into 30 small groups, such as support for the software, including software development tools, software testing tools, interface tools, conversion tools, software management tools, language processing, database management systems, network support software, and other support software. This classification method is based on the functions of the software division of standards, is the most common software classification. Legal protection from the software point of view, should be used the following classification can be more explicitly the various non-
Features included with the software according to different legal protection.
(A) All software can be divided into conventional software, and functional software. The former refers to non-original software is usually programmed level programmer can achieve the product. Programming ideas, whether such software or programming language used belong to the line products, and the originality of the software than the software more like artisan products, rather than work. Software programmers in cohesion is the hard work, sweat and investment, rather than the intellectual and creative achievements. The most common example of this software is the kind of program elements in all from public domain or other works, most of our common procedures are in this category. The latter refers to the establishment and original software. Or ideas in programming, or is in the language used, the general level of such software are remarkably with the progress of the software in an embodiment of the intellectual and creative achievements.
(B) works of original software is divided into software and software functionality. The former refers to the works of the software component is much larger than the proportion of functional software works, mainly referring to software support and application of several specific, such as game software, interface tools, intelligent software, such software, the value of cohesion point is that the works of the software among the functional fell to the second.
The latter includes most of the software, is the functional components of software is far greater than the proportion of works of software, such as system software, tools software, applications software. The value of the binding of such software in their work among the functional, that is, the completion of specific features in their creative methods and steps into.
(C) functional software can be divided into a non-patentability of software and patented software. The originality of the software, its creativity a hierarchy. A small part of the software can reach three of the requirements of patent law and protected by patent law (of course, can not declare the practice of pure software patents, but can be achieved through the application of writing skills curve obtained patent protection purposes), while a majority Three of the review can not be patented, there is no patent for software.
(D) No patent of software sub-editing software and original software. Which editing software, also known as the editor of the nature of the software works, its composition was no originality at all subroutine block (eg, removed from the public library in a subroutine), but the arrangement of blocks in various subroutines that are original. The number of such software will be gradually increased. Original software is the full code to write your own software, with the expansion of the scale software, the software will gradually reduce the number.
1 algorithms to protect problem
Algorithm constitutes the technical basis of a computer program. In the development of a program, the ability to use another program works, the algorithm used? If you are using algorithms and other procedures used in the algorithm is the same whether the procedure constitutes a violation of others? This is the computer software industry is very concerned about.
Generally speaking, the so-called algorithm (Algorithm, logic, or algorithm) is the string of the data processing steps, is some data structures (that is, a certain form of organization organized a group of data) to operate to solve certain problems and processes. Algorithm both in numerical computation methods, such as for arithmetic, find the function value, numerical interpolation, matrix operations, numerical integration methods such as operations and processes, including non-numerical computing methods, such as data on the number of search operations, classification of operations , sorting operations, replacement operations, combined operations, recursive operations, synchronization, communications operating procedures and processes. In addition, various specialized applications in many other specialized algorithms. An algorithm is usually composed of several logical steps. The logical step series has the following characteristics (note: should be: "The computer software copyright protection", Beijing University Press, 1991 Edition, pages 132-133.):
(1) the logical step is a poor family, that after a finite number of steps, this series will end.
(2) This series of logical steps are defined in detail and is determined. That is, the series must be an initial step, each step has one and only one follow-up steps.
(3) the logical step series of requests from the goals set out in the collection deal with objects as input data.
(4) This series of logical steps will be to operate the input data and get some results: or by the output data to some extent the answer to the question as to terminate; or identify the problem for these input data for the non-solution and an end.
(5) the logical step in the series are clearly defined for each step, which can be accurately performed. For the same data, using the same series of processing steps, the result of different people operate the same, and by the series of processing steps to operate independent of personal qualities.
In short, the computer program of the algorithm is to command or statements to form procedures to deal with specific data, method, computer program design is the idea. Algorithm is extremely important for computer program development, an innovative computer program is often the method used by the innovative brought. Also, write code using the same algorithm can express different functions the same computer program. Therefore, strong demand software industry's creative achievements protection algorithm is understandable. In the study of intellectual property protection of computer programs themselves, while people in the algorithm for the computer program aspects of intellectual property protection also has not stopped. Copyright law does not protect ideas included the concept works, computer programs as works of algorithms used in computer programs are included in the design concept, therefore, our "Computer Software Protection Regulations," Article 7 states: "The Ordinance on the protection of software can not be extended to the development of software used ideas, concepts, discoveries, principles, algorithms, processing methods and operations. " United States, Japan, Korea and other countries, copyright legislation, the European Community "on the legal protection of computer programs Council Directive" and the GATT "Trips Agreement", also have similar provisions. In fact, some commonly used algorithms are included in the manual for any person to use.
Clearly, in order to protect their new rights of the algorithm developed, the developer can use this algorithm as a commercial secret means to protect confidentiality. However, the law does not prohibit any persons on the open market sales of computer program products for reverse engineering, therefore, confidential means alone can not withstand competition on their own procedures reverse engineering. After years of discussions, the United States, Japan and other countries has made it clear that the algorithm itself, the object can not be patented, but the method in resolving certain problems in the application of the invention, as long as it does have a creative, innovative and practical, they can patent applications. Many countries, including China's patent laws provide that the laws of nature, abstract rules, mathematical formulas, rules and methods of intelligence activities are not patentable. China's Patent Office issued the "Review Guidelines" further states: "intelligence activities is that people think to run, it comes from people thinking, a reasoned analysis and determine the results generated from the abstract or the people must be thinking of sports as a medium to role in natural produce results, it is only to guide people to think of information on its expression, identify, judge and memory, without the use of technical means or to comply with natural laws, do not have the technical characteristics. Therefore, directing people to carry out such activities rules and methods can not be patented. " The "Review Guide" also specified that:
deduction, reasoning and planning, management methods, calculation rules, fast algorithm, mathematical theory and the conversion method, expressed as a mathematical algorithm is a collection of computer programs and other forms of intellectual activity are examples of rules and methods, For they are not patentable.
Since the late 70s, the world of computer technology with many countries raise the level fast, have been able to using other people's created by the Suan Fa, ?? that functional similarity, Dan Bingbu copyright infringement procedure a computer program to others. So the United States, Japan, for the protection of computer programs, computer algorithms enterprise's intellectual property more and more pressing demands. They began the computer program itself of the patent issues with computer programming technology patents discrimination, the algorithm itself, using algorithms to solve technical problems with the process of differentiation (Note: should be: "The algorithm used in computer programs of intellectual property protection "" Electronic Intellectual Property Rights "1996 10.). Based on the change in the understanding of the United States, Japan and other countries have gradually adjusted to the computer program patent examination standards, greatly relax the relevant restrictions. It is now widely accepted principle is: will a law of nature or mathematical formula applied to a known structure or process, it is possible to patent protection. Therefore, algorithm design with the use of computer programs to control the computer hardware to run the steps in the process related to the invention of technical methods to solve problems can be patented. Past ten years, in the United States and Japan have hundreds of computer programs related to patented inventions, including many of the same algorithm-related inventions.
From another point of view of the protection algorithm is also useful. The author believes that the reason why algorithms are excluded from copyright and patent protection is due to over-abstraction algorithm, the algorithm may be granted to protect the rights of people a kind of excessive monopoly power, contrary to the purpose of intellectual property legislation. But the algorithm with the specific combination of known structure or process, or through the "specific" of the future can become the object of protection.
Specific target of reducing the amount of information, excluding the abstract. Britain and other countries to grant patents on business methods can also reflect the discussions of this. In Britain and other countries, the implementation machinery and equipment available to business method patents, and method itself is not patentable. For example, a coffee machine on the concept of self-help can not be patented, no matter how novel it is, how useful or how much business will bring success, but a particular coin, with glass doors automatic food machines, such as the Anglo-American State common automatic coffee machine, generally speaking, is a proprietary in nature (Note: RlcHARDH. STERN. "Is Patenting ComputerizedMethods of Doing Business Socially Beneficial or Harmful", CTLR, 1997 years.). This business method can be understood as a specific process through after that patentable.
Based on this, I propose a new concept: "technical method", that mathematical algorithm combined with the specific task to achieve after the formation of a series of specific requirements of the specific method and procedure. Certain specific standards of patent law standards should be more than the ideological bias side, the value of the information age is also consistent focal point of information transfer to the trend.
In short, the existing legal system, the computer program through technical means algorithm to the "technical method" direction to move closer to be included in the scope of protection of existing patent law, combined with copyright law, trade secret law, competition law and other related law to form a three-dimensional system of protection should be one feasible way more realistic.
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