Software patentability: restoring the transatlantic balance

06-06-2016

Andrew Moir, Nic Ruesink-Brown, Allison Alcasabas and Laura Paliani

Software patentability: restoring the transatlantic balance

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Obtaining a patent for a computer program is still likely to be easier in the US than in the UK, but the difference between the two approaches no longer seems as great. Andrew Moir, Nic Ruesink-Brown, Allison Alcasabas and Laura Paliani of Herbert Smith Freehills outline the current situation.

At the heart of the debate over whether computer programs should be patentable is a philosophical question: to what extent do particular patents for computer programs seek to monopolise abstract ideas? Despite these philosophical origins, the patentability of computer programs has very significant practical consequences in the technological era.

The UK’s approach, as set out in section 1(2)(c) of the Patents Act 1977, expressly excludes computer programs from patentability to the extent that a patent application relates to a computer program “as such”. By contrast, US patent law contains no specific exclusion for computer programs and, focusing simply on whether an application involves patent-eligible subject matter, allows at least in theory for computer program patents.

Hence there is seemingly a fundamental difference in the two approaches and, for this reason, the US has traditionally been regarded as more amenable to patenting inventions covering computer programs and business methods.


Andrew Moir, Nic Ruesink-Brown, Allison Alcasabas, Laura Paliani, Herbert Smith Freehills, USPTO, Alice, Mayo, patent,

WIPR