A Comparison of the Patentability of Software in the United States and Europe

The patenting of software has long been a controversial subject. Despite vocal criticism from the open source movement, the number of patent applications filed for software and computer-implemented inventions has grown considerably over the past twenty years. This has challenged courts in the United States and Europe to balance patent applicants’ rights against the public interest through creative interpretations of patent statutes that predate the widespread adoption of computer technology. The latest twist in the tale came with last year’s decision of the U.S. Supreme Court in Alice Corporation Pty. Ltd. v. CLS Bank International (see CRi 2014, 146), which established a new test for judging the patent eligibility of computer-implemented inventions. In this article, Finnegan attorneys Philip L. Cupitt and Linda J. Thayer summarize and compare the current law on the patentability of software in the United States and Europe, and consider the extent to which Alice has harmonised the law and practice in these jurisdictions.