US vs Europe on what software is patentable

I once heard a business manager from a large, global organisation based in the UK speak about his dilemma about how to protect his IP globally. This is a summary of what he explained.

In the USA you can patent so-called “software business processes”. Perhaps the most notorious of these is Amazon’s 1-click ordering saga. In Europe the rules governing what software you can patent are much tighter.

So here’s the dilemma:

If you have a clever software business process then do you patent it in the USA? If you do make a patent application in the USA then all your competitors can now read that patent application and learn your special process. Your European competitors can even go ahead and copy that process with impunity, thereby lessening your competitive advantage in Europe.

Now, suppose you decide to go down the route of protecting your special business process by keeping it secret. You are now risking that one of your competitors may come up with the same process independently and that they might patent it in the USA. This would mean that the special process you were using is now subject to a patent owned by one of your competitors. You can no longer use that software business process in the USA, thereby lessening your competitive advantage in the USA.

What’s the answer? There isn’t a good one, unfortunately.

But this issue does highlight an important issue in the use of software patents globally.

My personal view is to hope for a brighter future where IP protection for software is covered more by Copyright rather than Patent protection. For three reasons:

  • A piece of software is, in my view, more akin to a book than to hovercraft landing gear
  • Copyright is automatic and so nowhere near as complex or costly to implement than a patent application, meaning businesses can focus on running their businesses rather than on retaining lawyers
  • I’m not aware of any example where a software business process patent genuinely helped innovation and progress


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