What are the main differences between the approach of the proposed Directive and the situations in the US and Japan?
The main difference lies in the requirement for “technical contribution”. Japanese law does not have this as such, but there is in Japan a doctrine which has traditionally been interpreted in a similar way: the invention has to be a “highly advanced creation of technical ideas by which a law of nature is utilised”. In the US on the other hand, a patentable invention must simply be within the technological arts. No specific technological contribution is needed. The mere fact that an invention uses a computer or software makes it become part of the technological arts if it also provides a “useful, concrete and tangible result”. Among other things, this has meant that in practice in the US, restrictions on patenting of business methods (apart from the requirements of novelty and inventive step) are negligible. Practice in both the U.S. and Japan is to allow patent claims to software that implements patentable inventions. The need to maintain and improve standards of patent examination for
