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Patenting Computer Related Inventions Essay

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European Intellectual Property Review
2011
Patenting computer-related inventions in the US and in Europe: the need for
domestic and international legal harmony
Carole Deschamps
Subject: Intellectual property. Other related subjects: European Union. Information technology
Keywords: European patents; Patentability; Software; United States
Legislation: United States Code 35 U.S.C. s.101
European Patent Convention 2000 art.52
Proposal for a Directive on the patentability of computer-implemented inventions COM(2002) 92 final
*E.I.P.R. 103 This article provides a critical overview of the current regulation of the patentability of
computer-related inventions, in the context of conflicting cross-jurisdictional governing provisions and
practices resulting in an unfortunate lack of legal harmony at an international and domestic level. In
particular, this article queries the impact of the divergent laws and practices of the US and the EU on
the essential achievement of a more harmonised and effective intellectual property legal framework
for computer programs, capable of securing adequate economic returns for inventors while preserving
the necessary scope for competition and public access to the use of these technologies.
Introduction
“If our objective is to maximize economic growth, are we striking the right balance in our protection of
intellectual property rights? Are the protections sufficiently broad to encourage innovation but not so
broad as to shut down follow-on innovation? Are such protections so vague that they produce
uncertainties that raise risk premiums and the cost of capital? How appropriate is our current system
… for an economy in which value increasingly is embodied in ideas rather than tangible capital?”1
The patentability of computer-implemented inventions is currently governed by unclear and conflicting
cross-jurisdictional legal provisions, which give rise to an unfortunate lack of international legal
harmony in the context of...

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