Patentability of Computer Program Algorithms in the G20 States

Abstract

Ubiquitous computerization and digitalization are contributing to the unprecedented growth of the software market. Computer programs are protected as subject of copyright law in international law and domestic legal systems. However, copyright law does not protect the interests of the copyright holder from borrowing ideas and algorithms which often have agreat commercial value. This circumstance has prompted the legal science and law enforcement practice of the most developed states to justify the possibility of protecting computer programs and their algorithms. The leading states chosen for in this paper are the G20 states. The relevance of this choice is due to the following: 1) The G20 states account for 86% of global GDP; 2) All world leaders in computer software development are G20 members; 3) All BRICS states are G20 members; 4) The law-and-orders of the G20 states are relevant to all existing traditions of the legal protection of intellectual property in the world. The legal systems of the G20 states follow one of three approaches according to the criterion of patentability of computer programs and their algorithms. We call the first approach “neutral.” It includes States which legislation does not explicitly prohibit the patenting of computer programs, but computer programs themselves are not mentioned among the subject matters of inventions. The second (“positive”) approach includes those states which legislation explicitly classifies computer programs as patentable inventions. On the contrary, the third (“negating”) approach includes states where it is legally established that computer programs as such are unpatentable. The results of the research demonstrate that there is no direct correlation between the way of solving the issue of patentability of computer program algorithms in different legal systems and the state’s place in the global IT market. For example, the United States and China take aneutral approach, Japan takes apositive approach, the EU Member States and India take anegating approach. We believe that the most flexible approach is aneutral approach from the point of view of patent law policy. The most liberal and consistent approach is the positive approach presented by the Japanese legal system. Finally, the negating approach is the most controversial and at the same time widespread among the G20 and BRICS states.