EUROPEAN VS US PATENTS
Imagine this scenario – Your software startup does business in both the US and Europe. You go to a US patent attorney/agent, who tells you that your software idea is patentable and then files your patent application. Then you go to a European patent agent who tells you that your software idea is NOT patentable. Huh? What happened?!
EACH COUNTRY HAS ITS OWN PATENT RULES
Patent rights are only enforceable in the country where they are obtained. This means that you have to file a patent application in each country where you want to do business in order to protect your idea. Europe* and the US are different countries so you have to file for patent protection in each one separately.
But, Europe and the US have very different rules when it comes to software. European patent rules are very restrictive for software – most e-commerce and app ideas are not patentable in Europe. By contrast, such ideas typically ARE patentable in the US, which has much broader software protection laws.
So if you consult a European patent agent who tells you that your software idea isn’t patentable, don’t immediately give up on getting a patent in the US.
WHY US SOFTWARE PATENTS ARE BROADER
You’re probably wondering why these modern entities behave so differently when it comes to idea protection. The US and Europe are philosophically opposed on software patents. The US believes that software can be an invention like any other; even with the new patent rules, patents on simple business method are still allowed. Business method patents include most e-commerce, social media and app-related patents. The technical requirements for such patents in the US are relatively low.
By contrast, in Europe, software is generally not patentable. Some limited exceptions are given for software that is considered highly technical and solves a specific technical problem, such as circuit simulation software. However many types of software that are used today would not be patentable in Europe – although they would be in the US.
WHY YOU SHOULD TALK TO A US PATENT AGENT/ATTORNEY
So much software nowadays is not contained within national boundaries. The United States could potentially be an important market for you, even if your software startup is based outside the US – such as in the Netherlands. If this is true, then you should consult with a US patent agent or patent attorney to see if you can protect your software idea.
Protection is so much broader for software patents in the US that it is very possible that you could file for patent protection – and get it! That would increase your startup’s valuation in the US and would make it easier to attract investors – or even an exit.
*Europe is actually many countries – but for filing patent applications, it acts like a single country.