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In his recent article “Decoding Divergence in Software Regulation”* Thomas Eimer very convincingly demonstrates and explains differences in software patent regulation between the United States and the European Union. He basically distinguishes three “structural causes for the persisting divergence” (p. 276) – namely the US practice of patenting software versus the European reluctance of doing so:  (1) incompatible underlying paradigms, (2) differentiated patterns of power structure, and (3) unsynchronized institutional arrangements.

Especially in dealing with the first cause, “paradigmatic cleavage”, Eimer argues rather broadly, embracing both patent and copyright law. And I completely agree, when he contrasts the strong “utilitarian” rationale of intellectual property rights in the US with European scepticism for such utilitarian reasoning. I am not so sure, however, that the partial rejection of utilitarian welfare assumptions automatically leads to a better balance between “public and private interests” in the field of intellectual property regulation in general, as implied by Eimer when he writes: “Opponents of strong intellectual property rights in Europe can refer to a long tradition of suspicion”. Read the rest of this entry »