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Unites States and Europe Software Patent Laws Compared
Software is a global business. Patents are increasingly the protection of choice; as a consequence, international software patent laws are of growing importance to software vendors. This article focuses on European patent law and how it differs from United States law in regards to software technology. Statutes and relevant case law of both unions are discussed and compared, providing an introductory secondary source for scholars and practitioners.
Introduction
In the past, industrial countries had their own patent laws and offices. Those seeking protection in a specific country had to apply for a national patent and obey local laws. With increasing globalization, international agreements were made and organizations founded to reconcile regional differences: The 1883 Paris Convention1 was based on the principle of reciprocal national treatment and therefore dealt more with international comity than the unification of patent laws. The 1970 Patent Cooperation Treaty (PCT)2 finally implemented international one-stop patents.3 Both treaties are administered by the World Intellectual Property Organization (WIPO).4
The new trend is to include intellectual property matters in trade agreements: In 1995, the World Trade Organization (WTO)5 passed the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)6 to reconcile the world's patent laws. The agreement imposes uniform minimal standards modeled after the laws of industrialized nations and is part of the General Agreements of Tariffs and Trade (GATT), the purpose of which was to eliminate trade barriers.7
Still, even developed countries differ on which inventions should be patentable, especially when it comes to recent technology. Software is not an exception: While the United States has opened the doors for patents of business methods and mathematical algorithms (as long as they have a useful application)8 other countries are divided. Japan and Asia in general seem to follow the U.S.'s lead, while Europe is still more conservative on the issue.9
This article discusses European software patent law comparing it to similar and distinct holdings in the United States. While European patents - issued by the European Patent Office - are binding on all countries of the European Union, each country also maintains its own patent office and applies its own laws. However, efforts are undertaken to reconcile those laws with EU standards, making the patent law of a particular member country decreasingly relevant. A detailed discussion of the laws of each country would go beyond the scope of this article and is therefore limited to highly relevant issues.
Reference > Duke
