The aim of this research is to investigate the phenomenon of business method patents in Europe. Not only the issue of patentability of business methods is discussed, but also the possible strategic use of these patents and patent applications is explored. For this purpose, a data set has been specifically created, including all the applications submitted in the class G06Q (namely data processing systems or methods, specially adapted for administrative, commercial, financial, managerial, supervision or forecasting purpose) at the EPO. A quantitative analysis of the data has been performed, revealing the huge volume of business method patent applications (more than 34,000) filed at the EPO over the last 20 years. Equally, a continued interest of large companies in patenting business methods has been demonstrated. However, these empirical observations seem to be inconsistent with both the legal framework (most notably Article 52 EPC 2000 establishes that business methods are not patentable) and the low rate of acceptance of applications (only a small fraction of patents have eventually been granted) in the category of business methods at the EPO. All of this supports the hypothesis that firm demand for business method patent protection can be driven by strategic purposes, often resulting in inefficiencies in the market and reducing in competition. Hence, the research presented intends to highlight overcoming inefficiencies, as well as possible antidotes provided by the EU competition law. On this purpose, some of the common practices, such as hold-up or tacit collusion, are identified. At the same time, the beneficial effects of mutual licensing agreements are highlighted. In particular, the research examines the European legal framework on the technology transfer agreements. Their effectiveness in contrasting business method patents' strategic uses is analysed, particularly regarding reduction on competition. Based on this, the thesis argues ultimately that a wider opening in granting patent protection to business methods will not result in discouraging new entries in the field.

在所有智慧財產權中，專利權為效力最強的專屬權利，政府賦予權利人獨佔排他權利作為誘因，藉由其揭露發明來促進產業的良性競爭，這與網際網路強調開放共享的特性基本上似乎有某種程度衝突，網路商業方法專利的爭議問題在Amazon.com控告B&N侵權一案到達頂點。本研究由法律、管理與市場三個層面來進行探討商業方法專利之相關問題。在法律層面，以文獻探討的方式進行，蒐集近來各國最新商業方法專利政策的近況，並進一步探討商業方法專利的可專利性問題。在管理的層面，本研究將蒐集各方學者對於商業方法專利的看法，並對美國專利商標局現行的商業方法專利之相關管理審查機制進行研究，在市場層面部分，則以實證分析的方式來進行，釐清商業方法專利與網站經營兩者間的關聯。 本研究所得到的重要發現如下:在文獻探討中發現，商業方法專利具有可專利性已無庸置疑，目前最大的問題在相關商業方法專利之「非顯而易見性」及「新穎性」兩要件之判斷方法不易，相關商業方法專利資料的建置不夠完善與相關審查人員素質及審查程序不良是造成問題商業方法專利充斥之主要原因。在個案的實證研究部分，得出下列之重要發現： ◇　專利權的有無與網站的存續有關，而網際網路之經營模式亦為影響網站生存的重要因素。 　◇　一般專利數的多寡與網站（公司）之經營規模之關係密切，商業方法專利數的多寡則與網站（公司）之經營模式有重大關聯。 ◇　各類網站經營模式所對應之專利組合不同，專利技術組合中與資料相關之技術多屬基礎性技術，而網站之商業方法專利（線上訂購、線上促銷）多屬關鍵性專利。

The reach of the patent system has substantially broadened in recent decades. Subject matter extensions were not introduced by parliaments, but by individual judges considering specific cases, often between private parties. The focus in this thesis is whether these changes create a net economic benefit to society. Because of the lack of data on patents, it is not possible to address this question directly. The thesis therefore focuses on a critical aspect of patents: their inventiveness.¶ The main contribution of this thesis is a detailed empirical assessment of the inventiveness of patents. This assessment breaks new ground by using the actual claims in the patent specification as the basis for a qualitative assessment against the yardstick of whether there is any new contribution to knowledge. This yardstick is used because a key social benefit from private invention is the spillovers from new knowledge. In addition a low inventive threshold encourages monopoly grants for inventions that would have occurred absent patents, and thus increases social costs without any offsetting benefits.¶ A small universe of 72 recently granted Australian business method patents is assessed on this basis. Of these, one possibly contributes new knowledge, and three others possibly contribute new ideas, but without any associated new knowledge. It is hard to find any contribution in the rest of the dataset. The data suggest that the large majority of currently granted patents produce no benefit to society, and do not meet the normal definition of the concept of “invention”.¶ The detailed analysis shows the underlying problems to include identifying previous knowledge, an issue already suggested by the literature, but more extensively documented here. The legal judgement rules developed through case law are shown to be very poor yardsticks for implementation of an important economic policy. The narrow legal doctrines result in, for example, the computerisation of well-known methods being judged both novel and inventive. They also allow obvious combinations of old ideas, and trivial variations on old ideas to be granted patent monopolies. Despite the analogous use doctrine, patents are granted for the application of known methods to new areas for which they are well suited.¶ A number of proposals are put forward for reform of patent policy. The underlying theme is that there should be a good chance, and clear evidence, that the patent system enhances national economic well-being. Specific proposals include writing the objective of patent policy into the statute so that judges have clear guidance in their decision-making, limiting the grant of patents to science and technology based inventions, requiring the patent applicant to demonstrate novelty and inventiveness beyond reasonable doubt, setting the inventiveness standard in the context of a balance between benefits and costs, and introducing a defence of independent invention.¶ As the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) mandates no discrimination under patent law between fields of technology, the results of this investigation may be generalisable to other technology fields. They may also be generalisable to the inventiveness standards in other jurisdictions: of the 72 Australian patents, 32 have already received at least one overseas grant (18 if New Zealand is excluded).

Nowadays, we may say that entrepreneurial activities include, among others, efforts aimed at searching and discovering new opportunities on the markets, the ability to make use of new chances and undertake any risks that may result to economic success as well as failure. The modern world is the world of constant changes and uncertainties. In such a world, those will win who will learn how to make use not only of opportunities on the market, but many times also the threats that uncertainty may bring along. The main aim was the analysis of the finance and insurance situation of the firm entering the international market. The other aim was the analysis of insurance and finance market and the concept of the best possibility for the firm. The result of this analytic part was the prediction, that the firm is able to enter the international market with direct business method, but first of all there is necessary to introduce it{\crq}s production, prices and the whole firm on the websites. During the analysis the firm has to specify it{\crq}s strategy and aims, makes calculations and decides of which insurance will be siutable for it. The next step was the decision of using the export financing, If it decides to finance the export, it{\crq}s necessary to chooze, if it will use the financing by private or state grant. For the firm the using of exports buyer or supplier credit will be two acceptably methods. The credit insurance by the state or private institutions is the other step to enter the international market. There are various kinds of other insurance (e.g. cargo, casco insuranc or the payment risk insurance).

<p>There is no commonly accepted definition of a business method. It ought to consist of a method or a process of doing business. Business methods constitutes a broad category of patents, it is hard to tell exactly what can be interpreted in to the term. Most of the world's legal systems have made an exception from patentability for business methods. In the USA the exception was abolished in a case 1998. Business methods were to be examined on the same criteria as other patent categories. Methods and processes, that traditionally has not been excepted from patentability, like methods for investing capital in financial markets, can now be issued patents in the USA. The business method patents could bring substantial economic values to the patent holder, and have a great impact on the development of internet-related businesses. Sweden and the European Patent Organization (EPO), which in this paper represents Europe, also has exceptions from patentability for business methods, but they have not yet been examined in a court of law. There are signs that the EPO, which includes Sweden, has taken a path similar to that of the USA.</p>

There is no commonly accepted definition of a business method. It ought to consist of a method or a process of doing business. Business methods constitutes a broad category of patents, it is hard to tell exactly what can be interpreted in to the term. Most of the world's legal systems have made an exception from patentability for business methods. In the USA the exception was abolished in a case 1998. Business methods were to be examined on the same criteria as other patent categories. Methods and processes, that traditionally has not been excepted from patentability, like methods for investing capital in financial markets, can now be issued patents in the USA. The business method patents could bring substantial economic values to the patent holder, and have a great impact on the development of internet-related businesses. Sweden and the European Patent Organization (EPO), which in this paper represents Europe, also has exceptions from patentability for business methods, but they have not yet been examined in a court of law. There are signs that the EPO, which includes Sweden, has taken a path similar to that of the USA.

自美國聯邦巡迴上訴法院於一九九八年State Street Bank一案，肯認商業方法軟體得為法定之專利標的後，全球之金融業、電腦業與網路公司莫不尋求以專利作為保護其商業方法之武器，商業方法專利申請之案件遂絡繹而來。惟商業方法軟體是否得為專利之標的，至今美國學界仍有爭議而見解不一，日本專利局係採與美國專利局相同之立場，然歐洲專利局目前似仍採否定見解。對此一議題，我國已有相當文獻討論，並均採肯定之見解。惟並未對何以可專利性之理由詳予闡述，至於專利侵害之問題，亦未就我國法深入分析。 本文擬自比較法之觀點，分析美國實務運作及學界之論述、歐洲發明專利公約及專利局實務之見解、日本法之規定與特許廳之意見，汲取其中之經驗與見解以為借鏡。第二章首先就商業方法軟體加以定義，並探究現今商業方法軟體之架構及其特殊性，以作為專利標的適格性分析之基礎。第三章分析商業方法軟體之施以專利保護，對產業與實務造成之影響。包括實務所面臨的困難﹙如先前技術資料庫之建立、審查人員之訓練、法院面臨之困難等﹚，及我國軟體產業應如何調適。第四章係探討商業方法軟體之專利標的適格性分析，依次分析美國法之規定與學說實務之見解、歐洲專利公約與專利局之立場、日本特許法之規定與特許廳之態度，以及國內學說實務之見解，並由我國專利法之立法意旨與商業方法軟體架構之特殊性，論述商業方法軟體在現今軟體發展之架構下，應非發明專利保護之標的，另亦就我國智慧財產局所公布之「電腦軟體相關發明專利審查基準」，加以探討並提出個人淺見，並摘錄智慧財產局已核准若干商業方法軟體專利之個案，加以分析。第五章自發明專利保護要件之觀點，探究商業方法軟體專利保護之問題。第六章則自美國法之觀點，分析商業方法軟體於網際網路上，所發生之跨國界專利侵害問題，並試從國際私法之角度，處理此類問題。最後，於第七章提出個人對商業方法軟體專利之淺見，並就我國現行專利制度提出未來保護方向之建議，以為結論。