Contributions to the debate on whether or not patents should
be granted for software are strongly felt, well argued and can
become emotional. When the EU was debating the CII Directive,
one MEP told me she had received more hate mail regarding
software patents than on any other topic during her term.
The outcome of that debate, as many readers will remember,
was that the Parliament overwhelmingly
rejected the Directive and it was dropped. As far as
European patents are concerned, computer programs "as such"
By contrast, the US has laid out the red carpet for software
and business method patents, at least since the Federal
State St decision in 1998 which gave us the "useful,
concrete and tangible result" test. The 15 years after that
coincided with the explosion of the internet and e-commerce,
and the liberal approach to software patentability contributed
to the continual growth in filings at the USPTO.
Put crudely, it was US = good, Europe = bad for software
patents (unless you were an unbeliever, in which case it was
Europe = good, US = bad).
But that simple distinction no longer stands. In Europe, the
law is predictable and patent attorneys will tell you that a
good invention, with a cleverly worded set of claims, can still
get protection at the EPO. The data support this: the EPO
grants about 2500 software patents annually. Even courts, such
as those in the UK, that were robust in rejecting software
patents, have softened. In the US, though, following the
Supreme Court’s curious decision in
Bilski v Kappos and the Federal Circuit’s
CLS Bank v Alice, there is considerable uncertainty.
(This was clear in two webinars
we held last year, both of which you can still listen to
– Software Patenting in Europe and Software patents
after CLS Bank.)
In our latest issue, we published a
survey of approaches to software patents in five
jurisdictions (Australia, China, India, the US and the
EPO). Each contribution addressed five questions about the
patentability of software and strategies for protection. Gareth
Fennell and Rob Genders, writing on Europe, say that EPO
practice is "relatively settled" and it is a myth that the
Office does not grant software patents. But John Collins, of
Schwegman Lundberg Woessner, notes that the US is "arrived at a
point of confusion and uncertainty".
The diversity of approaches increases the further afield you
look. Last week, Marks & Clerk published a
preview of their High-Tech Report 2014, which provides data
and analysis on software patents in the EPO, the UK, Germany,
France, the US, Canada, China, Asean, Singapore, Australia and
New Zealand. Mark Kenrick, a partner of the firm and one of the
report’s authors, told me: "The inconsistency in
this area is a problem. It leads to misunderstandings about
what can and cannot be patented."
The almost-theological divide between software patent
believers and atheists will probably never be bridged, and it
would be naive to hope for an international agreement. But a
clear and well-reasoned decision from the Supreme Court in the
Alice case could go some way towards reconciling those
of different views. I know
some observers are not optimistic, but let’s
hope that, after previously ducking the issue, the justices
will this time be up to the task.