Software Patents and the Internet of Things in Europe, the United States and India
European Intellectual Property Review, 2017, 39(3), 173-184.
12 Pages Posted: 1 Sep 2017
Date Written: August 16, 2017
This article sheds light on the pressing issue of software patents by giving an account of the approaches followed in Europe, the US and India. The occasion of this study is the adoption in 2016 of the final version of the Indian guidelines on the examination of computer-related inventions, which have been surprisingly overlooked in the legal literature. The main idea is that the Internet of Things will lead to a dramatic increase of applications for software patents and if examiners, courts, and legislators are not careful, there is a concrete risk of a surreptitious generalised grant of patents for computer programs as such (in Europe) and for abstract ideas without inventive concept (in the US). The clarity provided by the Indian guidelines, following a lively public debate, can constitute good practice that Europe and the US should take into account. Conversely, the sea of patent software looks very stormy in the US, where, after some reversals of the leading case Alice Corp v CLS Bank International, there seems to be the risk of swelling the ranks of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies. Some good news, however, comes from a dissenting opinion that innovatively suggests bringing free speech into the reasoning on patents.
Keywords: internet of things, patents, computer-implemented inventions, software patents, patent law, computer-related inventions, IoT, cyber-physical systems, M2M, industry 4.0, industrial automation, standard essential patents, licensing, propertization, commodification
JEL Classification: O3, 034, 038, 031, 032, 033, 035, K11, K12, K42
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