Software… between Invention and Copyright
Indeed, a software can be protected with a patent application or copyright. These tools can be implied together or as alternatives to each other.
Software protection with a patent application:
With regards to software protection with a patent application, it allows to protect the software “logic” regardless of the specific programming language used.
In fact, articles 52(2)(c),(3) of the European Patent Convention and articles 45(2)(b), (3) of the Industrial Property Code exclude patentability of computer programs “as such”.
According to the interpretative line supported by the European Patent Office, computer programs “as such” represent purely abstract concepts, therefore lacking any technical implication (T 258/03).
However, according to the European Patent Office again, the exclusion of patentability would not apply to those computer programs having a technical character, that is to say capable of producing a technical effect further to the normal interaction between software and hardware, upon which the software is implemented (T 1173/97 e G3/08).
As a further technical effect, considered with no reference to the prior art, we can mention for example the control of an industrial process or the internal functioning of a PC or its interface.
Moreover, by “computer implemented inventions” the European Patent Office means those inventions entailing the presence of one or more computers or any other programmed device, where at least one characteristic is performed by computer program.
Therefore, while a computer program refers to a sequence of instructions which can be performed by a computer thus defining a method, computer implemented inventions refer to a method performed by a computer.
According to the European Patent Office, inventions concerning a computer implemented method or a storage device readable by a computer cannot be excluded from patentability according to Articles 52(2)(c),(3), because any method using technical means has a technical character and any technical device has a technical character in itself, and so it can be considered an invention according to Articles 52(1) (T 424/03).
Software protection with copyright:
With regards to software protection with copyright, the inclusion of software in the copyright regulation equalled it – being undoubtedly a creation of ingenuity with technological content – to a creation of ingenuity with artistic content.
Article 1 “Computer programs shall be protected as literary works according to the Berne Convention…”
Article 2 “In particular, such protection applies […] to computer programs, whatever may be the mode or form of their expression, provided that they are original in the sense that they are the author’s own intellectual creation”.
It is clear that relating a software to a literary work is of course a fictio juris.
The programmer has a certain deal of freedom when creating a sequence of operations, thus deciding the software’s structure. Let’s just think about how many alternative forms there are in a software to obtain the same functions.
As a consequence, software can have a creative character and with copyright its protection is limited to the “expressive” form, that is to say the way in which instructions are conceived and organized, instead of the function it should execute.
To the purposes of law, a software’s registration is not necessary as the right exists with the creation of the work (…the software!) itself, but it is still advisable as it could be a simple piece of evidence to keep in case of future litigation.
Software protection with copyright can be aggregated with patent protection. In fact, on one hand copyright substantially protects the software’s expressive form, while on the other hand a patent protects the software’s logic, regardless of its expressive form.
Copyright also provides for databases protection.
Article 1 “Copyright protection also applies to databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation”
Article 2 “…databases […] defined as a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means”.
As for the software, the inclusion of databases within the copyright protection represents a peculiarity in order to safeguard the investments of the database creator, as searching, checking and presenting information usually requires a big investment.
Considering the wide variety of software types (especially in light of the increasing number of app being developed), it’s impossible to identify in advance a protection strategy for a software and it is always advisable to seek help from an expert, in order to evaluate the best protection on a case-by-case basis depending on the software type and the legitimate owner’s needs.