> It is not the patent offices job to test the validity of patents.
Actually, it is (at least in the US). USPTO can deny patents on the basis on nonpatentability, and its general refusal to do so post-State St. decision is often cited as one of the problems of the modern patent system.
Broadly speaking, however, if the argument is that software patents are invalid in Europe because they'll be found so by the courts, it should be noted that SCOTUS is actually pretty likely to rule software unpatentable were it to hear a software patent case. A little background is in order:
In Parker v Flook (1978), SCOTUS said that mathematical algorithms (i.e., basically software) is unpatentable. In Diamond v Diehr (1981), they said that part of the patent being software doesn't make the entire thing invalid. The big decision is State St (1998), which is a CAFC decision holding that anything was patentable so long as it produced a "useful, concrete, tangible" result and basically broke the patent office. When SCOTUS decided Bilski v Kappos (2008), they emphatically (and unanimously!) called out State St as wrong, but declined to endorse any guidelines as to what the limits of patentability should be. Later Mayo (2012) and Alice (2014) decisions again unanimously and unambiguously laid out what wasn't patentable: natural processes, and "do it on a computer" steps.
A few years ago, we had a patent attorney at work tell us (paraphrasing somewhat) that Alice made it really hard to figure out how to write a software patent that wouldn't be invalidated. Their continued existence (and pretense to their enforceability) is less because it's secure and more because no one wants to spend the money to litigate it to the highest level (see also the Google v Oracle case, which is exactly the sort of thing a software patent case history would entail).
Actually, it is (at least in the US). USPTO can deny patents on the basis on nonpatentability, and its general refusal to do so post-State St. decision is often cited as one of the problems of the modern patent system.
Broadly speaking, however, if the argument is that software patents are invalid in Europe because they'll be found so by the courts, it should be noted that SCOTUS is actually pretty likely to rule software unpatentable were it to hear a software patent case. A little background is in order:
In Parker v Flook (1978), SCOTUS said that mathematical algorithms (i.e., basically software) is unpatentable. In Diamond v Diehr (1981), they said that part of the patent being software doesn't make the entire thing invalid. The big decision is State St (1998), which is a CAFC decision holding that anything was patentable so long as it produced a "useful, concrete, tangible" result and basically broke the patent office. When SCOTUS decided Bilski v Kappos (2008), they emphatically (and unanimously!) called out State St as wrong, but declined to endorse any guidelines as to what the limits of patentability should be. Later Mayo (2012) and Alice (2014) decisions again unanimously and unambiguously laid out what wasn't patentable: natural processes, and "do it on a computer" steps.
A few years ago, we had a patent attorney at work tell us (paraphrasing somewhat) that Alice made it really hard to figure out how to write a software patent that wouldn't be invalidated. Their continued existence (and pretense to their enforceability) is less because it's secure and more because no one wants to spend the money to litigate it to the highest level (see also the Google v Oracle case, which is exactly the sort of thing a software patent case history would entail).