Approach to Software Patents: The US Versus the EU

The U.S. and the European Union have rather different approaches to patenting software. These differences make it easier for developers to patent their creations in the EU.

In one of the cases heard by the U.S. Supreme Court in 2014, it was announced that a special two-step test must be implemented in order to determine whether an invention is patentable. The first part of the test determines whether the subject of the testing falls into the “unpatentable” category, such as laws of nature or abstract ideas. The second part of the test is used to find out if the subject is created through an inventive application of an idea or law of nature. This approach makes it rather difficult to patent software, as it is usually deemed to be excluded from the area of patenting.

At the first glance, it may seem that the situation in Europe should be even worse, as EU laws have a provision stating that software should be excluded from patenting by default. However, local lawyers found a way around this restriction, which resulted in a de minimis application of said provision. They are using the fact that the EU patenting legislation considers “technical character” to be a synonym to “invention”. This means that everything that can be labeled “technical character” can be patented, and anything even remotely related to computers can be deemed as a “technical character”.

In Europe, the patent eligibility threshold for software is a mere formality, but U.S. courts do not accept this kind of approach. U.S. rules state that software is an ineligible subject for patenting, so no amount of creative wording can change the judge’s view on this matter. The European courts aren’t very supportive of this practice either. However, there is not much they can do if the patent application was worded in a specific way. Due to these formalities, almost every software patent claim in the EU is accepted.

The problem with the U.S. approach to software patenting could be solved if the courts put more faith in the technical application test. The current system that is based on determining patentability suffers because the very concept of “abstract idea” is too vague. It needs to be clarified in order to prove or disprove whether the subject of the patent claim falls into this category.

Should a better “test of abstraction” be created, the problem will be easily solved. Unfortunately, no significant steps have been taken in this direction so far. This is why many software developers prefer to operate from Europe.


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