Chapter 2: Unifying the International Law of Business Method and Software Patents
Larry A. DiMatteo1 and Robert E. Thomas2 INTRODUCTION The Trilateral Patent System consists of the world’s three major patent law regimes – those in Europe, Japan and the United States. The trilateral system has been remarkably successful in harmonizing the law of the three legal regimes. The history of the trilateral system has been one of convergence. A notable exception has been the recent divergence among the patent law regimes in the area of business method and software patentability. This chapter analyzes the divergence in the patent systems in these areas and reviews the reasons for their continued divergence. It then makes recommendations on how best to harmonize international patent law. Our analysis concludes that the EU and non-EU European countries are unlikely to adopt the US’s expansive recognition of business method patents. Statutory prohibitions against issuing business method and software patents prevent a full-scale adoption of the US approach. The EU has been able, through often-tortured interpretations, to approve a multitude of patents for computer-implemented inventions, but these interpretations have produced a degree of uncertainty and inconsistency. Therefore, a necessary condition for harmonization is for the US to revoke its full recognition of non-computerimplemented business method patents. The ﬁrst part of the chapter reviews the state of business method and software patent law in the US, Europe and Japan. The chapter then examines the extent to which the three systems have converged in the area of business method and software patent law. The ﬁnal part of the chapter recognizes that...
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