Computer-implemented inventions in Europe

Abstract

The dispute between proponents and opponents of the patent system has been especially visible with regard to the patenting of computer programs. Different developments have resulted in the fact that there are large differences in the patent practices between the European Patent Office (EPO) and the U.S. Patent and Trademark Office (USPTO). While software as such is patentable at the USPTO, the EPO prohibits patenting of pure computer programs and only allows patenting of computer implemented inventions (computer-implemented invention (CII)). In this chapter, we investigate the differences between the European and American patent systems with regard to patenting computer programs by also addressing the historical developments that have resulted in the national differences. Based on these considerations, a definition of CII is derived, which enables us to carry out empirical analyses. By applying a conservative estimate, our results show that the share of CII filings at the EPO lies at around 25 % at present, while at the USPTO a current margin of approximately 33 % is reached. Thus, at least every fourth patent at the EPO and every third patent at the USPTO is a CII filing. In order to take account of the factual (technological and economical) relevance of computer-implemented inventions, we argue for clear rules with regard to patenting CII, as they are essential to reduce uncertainties and provide the relevant incentives for innovation.