Developments Regarding the Patentability of Computer-Implemented Inventions within the EU and the US: Part 2-Analysis of the Impact of the Patent Eligibility Rules For Computer-Implemented Inventions

摘要

This article initially examines the rules for subject-matter eligibility of computer-implemented (CI) inventions under the laws applied by the European Patent Office (EPO) and in the US. These rules impose material constraints on the CI inventions that are patentable in these jurisdictions. There do not appear to have been significant changes to the EPO criteria over the last few years; by contrast the interpretation and application of the US criteria have significantly changed during this period. The changes in the US criteria have led to a threshold for patentability of CI inventions that is more similar to that of the EPO's, especially compared with the situation in 2005 when the European Parliament rejected a draft directive relating to CI inventions. Patent quality, however, remains a concern in both jurisdictions. Patent troll activity in the US has increased dramatically, although recent legislative changes may temper this. Although patent troll activity is not yet a large concern in European jurisdictions, the establishment of a Europe-wide court system for patent litigations through the Unified Patent Court may change this. Additionally, this report summarises an empirical study of cloud computing patents that have been asserted in litigation. Using these asserted patents as a dataset, the report investigates, among other things, the relative number of EPO and US patent applications and patents in families of these patents. The detailed analysis of these issues remains outside the scope of the present report.