Decoding Divergence in Software Regulation: Paradigms, Power Structures, and Institutions in the United States and the European Union THOMAS R. EIMER* Both in the United States and the European Union, patent policy instru- ments in information and communication technologies are contested. Although current reform proposals would lead to a uniform patent eligi- bility for computer programs in both economic spheres, such an outcome is rather unlikely. In a theoretic perspective, contrasting policies in one of the most important technology sectors challenge the expectation of converging regulative regimes. In a view to reveal the structural causes for the persist- ing divergence, it is argued that incompatible underlying paradigms, dif- ferentiated patterns of power structure, and unsynchronized institutional arrangements may resist even strong pressures to harmonize regulative practices. The interaction between these elements will be addressed and discussed as a perspective to define restraints on the scope of convergence theories. Introduction Both in the United States and the European Union (EU), the application of traditional patent policy instruments in information and communication technologies (ICT) are hotly debated. Critical observers in the United States argue that an overbroad protection, especially of computer pro- grams, incites a strategic use of patents in an incremental innovation process, which may discourage further research and development (R&D). They recommend more elaborated examination procedures at the U.S. Patent and Trademark Office (USPTO) as well as a juridical reform pre- venting abusive litigation (Graham etal. 2003; Majoras 2006). Eventually, these reforms would restrict patent entitlements in respect of software- related goods. In the EU, however, various stakeholders are engaged in a redefinition of the patent scope that would facilitate the introduction of software patents by the backdoor. Taken together, recent reform proposals would lead to a uniform patent eligibility in the United States and the EU. Nonetheless, such an outcome seems rather unlikely as the ongoing debates and legislative attempts to readjust the patent system crisscross in both economic spheres. *Fernuniversität Hagen Governance: An International Journal of Policy, Administration, and Institutions, Vol. 21, No. 2, April 2008 (pp. 275–296). © 2008 The Author Journal compilation © 2008 Blackwell Publishing, 350 Main St., Malden, MA 02148, USA, and 9600 Garsington Road, Oxford, OX4 2DQ, UK. ISSN 0952-1895