The Extent of Software Patentability: An International Dilemma.

Computer programs (more generally, software) have become an essential part of the contemporary (social, economic, juridical etc.) life. Nevertheless, an agreement regarding the extent of their protection has yet to be reached. Thanks to some international conventions, and in particular to the “TRIPs Agreement” (Art. 10), a certain kind of uniform protection was granted to software through copyright legislation. At the European level, such harmonization had also been anticipated by the so called “first software directive” (Directive 91/250/EEC, subsequently amended by Directive 93/98/EEC). After a long international debate, inventions regarding programs per computer and business methods (often reciprocally linked) are not considered inventions and/or are deemed not patentable by the great majority of national legislations and in particular by one of the most important international IP treaties: the “European Patent Convention (EPC)”. The “TRIPs Agreement” is silent on the matter. However, it was argued from the very start that copyright protection was insufficient and/or inadequate for computer programs. Some scholars proposed that software had not only to be copyrightable but also patentable, while some others submitted that the best solution was to create an “ad hoc” intellectual property right for software-related products. While the theoretical debate was continuing, and still goes on, computer programs and the computer industry greatly evolved. As a consequence, administrative and judicial case law gradually began to adapt to the new market’s needs: software patents were granted and deemed to be valid. At the end of the Twentieth century, patenting software became common practice and the official guidelines of the most important Patent Offices began to be drawn accordingly. It is evident that software protection, far from having been confined to copyright (trade secret and trademark) law, increased year after year, while the legislative provisions and the international treaties remained unchanged. The aim of this dissertation is to establish the extent of software patentability in Europe and in the United States, with a brief reference, where necessary, to other legal systems. The dissertation also suggests that a harmonization at the international level with regard to software programs patent protection would be helpful in increasing legal certainty.