This chapter examines the vacillating patentability standards that have characterised courts’ treatment of software-related inventions under patent law in Europe and the US. Despite starting from opposing legislative bases – one specifically excluding computer programs when claimed as such and the other containing no explicit prohibition – the jurisprudence on both sides of the Atlantic has progressed along very similar lines. This chapter charts the development of the law in these jurisdictions and considers whether such incertitude is an inevitable consequence of software’s duality as both text and machine.
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