Patent rights are utilized across the globe to guarantee the rights of inventors and patent holders against infringement and misuse of their invention. The value of patents lies in the exclusivity to enjoy the oftentimes substantial economic benefits through the commercialization or sale of those inventions. Whether an invention is patentable is determined by a variety of factors including novelty and non-obviousness, but one criterion which must be met before those aspects are even assessed is whether or not the invention’s subject matter is patent-eligible. At first glance, this would seem like a simple question with a uniform approach, however, different nations have various methods for approaching the question. What is considered eligible has a great impact on the granting of patents because otherwise patentable inventions can be entirely ruled out as a singular class. The differences between nations’ patent subject matter eligibility standards influence their economies and the companies who may choose to do their research and innovation in those countries for the benefit of greater protection. By examining the patent systems of three of the world’s largest economies and their contrasting approaches to subject matter eligibility, the small differences that create distinct outcomes can be evaluated as we continue to move toward a harmonized global patent system.

United States of America

The United States’ approach to subject matter eligibility is described in 35 U.S.C. § 101, which states: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” This is understood as limiting patentable inventions to those four groups as eligible subject matter, with specific caveats requiring “practical utility” and excluding abstract ideas, laws of nature, or natural phenomena. The United States diverges from other patent systems due in part to the Supreme Court’s holding in Alice Corp v. CLS Bank International: “the mere recitation of a generic computer cannot transform a patent-ineligible idea into a patent-eligible invention.” This creates a specific bar on patentability to many forms of software dependent on the structure of the claim language because they are perceived as simple recitation of abstract ideas or natural phenomena by a device (i.e. a generic computer). Outside the abstract exclusions, US law denies the protection of patent rights to inventions that utilize “special nuclear material or atomic energy in an atomic weapon.” Other systems take a more specific approach in naming the kinds of abstract ideas or natural phenomena that are excluded within their coded law. However, in the U.S. the law has been built upon court decisions examining whether or not certain inventions fall within those broad categories.


In Europe, patentability is largely determined by the European Patent Convention, which describes patent subject matter eligibility in Article 52. Article 52 states “European patents shall be granted for any inventions in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.” Section (2) of Article 52 goes on to list several exclusions including: “(a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computer; (d) presentations of information.” While the exclusions from patentability are more specific in the EPC than the U.S.C., there are nuances and exceptions to them that allow for eligibility of certain inventions that would appear ineligible at first glance.

The described excluded categories  “only to the extent to which the application relates to the excluded subject matter as such.” European patent law looks at the technical effect of the invention to assess its eligibility, and, in regard to software, allows for eligibility in cases where a technical effect is produced beyond the execution of the code. Similar to the U.S. exclusion for nuclear weapons, European patent law has specific exclusions for inventions that would otherwise be patentable. These lines are drawn around “Matter contrary to order public or morality” and “Surgery, therapy, and diagnostic methods.” These exceptions exist to prevent profit incentives for inventions that go against the public good and prevent monopolistic pricing and control over inventions that benefit public health. While there are many exceptions within the exceptions, the policy decision is one taken by several other nations in their pursuit of balancing the public good with the rights of inventors.


Patent eligibility in Japanese law is governed by Articles 2(1), 29(1), and 32 of the Patent Act. Article 2(1) defines an invention as “the highly advanced creation of technical ideas utilizing the laws of nature.” The guidelines (§ 2.14) go on to exclude several categories including: “(i) The laws of nature as such; (ii) Mere discoveries and not creations; (iii) Those contrary to the laws of nature; (iv) Those in which the laws of nature are not utilized; (v) Those not regarded as technical ideas; (vi) Those for which it is clearly impossible to solve the problem to be solved by any means presented in a claim.” As well as a categorical bar on all inventions which are deemed not to utilize the laws of nature. Similar to European patent law, software is more easily found to be eligible than in the United States due to its description of what qualifies as utilization of the laws of nature. The guidelines (§ 3.1) also describe situations in which classes of inventions fall short of the industrial applicability requirements, including: “(i) Inventions of methods of surgery, therapy or diagnosis of humans; (ii) Commercially inapplicable inventions; (iii) Obviously impracticable inventions.” Japanese patent law is very specific in its claim language requirements, and inventions may be deemed unpatentable in one formulation while they are patentable in another.

While the differences between the language and processes in these systems may appear minor, the way they are applied has a great impact on the economy and the process and development of new technologies. Whether these protections are perceived as a benefit or a burden to their respective nations, the monopoly granted by a patent allows for exclusive financial gain wherever it is found to be valid. Over time, the world has attempted to harmonize patent law standards and allow for greater protection in the global economy, but some notable differences remain in even the most fundamental aspects of the law. Seeing the impact these laws have on their countries, and focusing on what they include and exclude, can help inform what system works best to meet individual countries’ needs as we move towards ever greater unity within the international community. Further, general awareness of these distinctions is helpful to inventors, their counsel,  and those interested in participating in the global economy with the benefit of patent protection.

Author Biography: Connor Noel is a moderator for the International Law and Policy Brief (ILPB) and J.D. candidate at The George Washington University Law School. He received a B.S. in Cellular and Molecular Biology at Christopher Newport University.