As electronic business has become more important in the information society, during the past few years, the creation of software in Europe has increased. In this market, European small and medium-sized enterprises (SMEs) have an essential role to play. However, many of them are not aware of the fact that legal protection can be guaranteed for the same software by legislation on patents and on copyright. They are not normally aware that patents can protect their software, as they constitute a source of technical information that is very useful for innovation.
Is my software protected by copyright?
When an SME develops new software, it automatically benefits from the traditional protection granted by copyright as long as the software is original in the sense that it is an intellectual creation of its author in accordance with the Directive of the Council of 14 May 1991 concerning the legal protection of computer programmes (91/250/EEC). A copy will not be considered as an original. This copyright protection is granted without resorting to any formality. The benefits in terms of cost (registration cost, advertising cost) are thus significant for the SME.
What are the problems of such protection?
However, the protection granted by copyright to software is not always the ideal solution. The ideas and principles that are the basis of the software are not protected. Besides, sometimes it is considered inappropriate for recent industrial developments. In a highly evolutionary context, the economic life of software does not normally go beyond a few years, and does not correspond to the duration of copyright for software (in principle, 50 years from the time that the computer program is first lawfully made available to the public). There are other problems as well concerning proof; the absence of a compulsory legal formality for registration or advertising might create uncertainty about the date of creation. For example, in a lawsuit for infringement, it will be extremely difficult for a party to prove the anteriority of the software as against, a third party, or the act of copying if the second is not an obvious or slavish copy of the first.
Can I apply for a patent for my software?
For this reason, thousands of software patents are applied for every year at the European Patent Office in the context of the centralised system established by the European Patent Convention (EPC), or at national patent offices. They concern essentially the management of digital data, the recognition of data and the representation and management of information. For the patent to be granted, it is necessary to fulfil the patentability conditions provided in Article 52, paragraph 1 of the EPC: novelty, inventive step and industrial application. The criterion of inventive step is probably the most difficult to apply. In order to avoid huge differences in the practice of the patent offices in Europe, the European Commission has proposed that a Directive concerning the patentability of computer-implemented inventions (COM/2002/0092 final) be adopted. The text specifies that, in order to involve an inventive step, a computer-implemented invention has to make a technical contribution - not obvious to a person skilled in the art - which has to be determined by assessing the whole invention.
Would it be profitable for me to apply for a patent of my software?
Although it is more expensive, the protection granted by patent rights is considered stronger than that granted by copyright. The latter only protects the expression, whereas the patent focuses on the technical effect. A company that develops software has to assess if such a protection is necessary and if the cost it implies will allow profits to be obtained.
Is it possible to benefit from both protections at the same time?
Finally, note that it is possible to benefit from the two sorts of protection at the same time. Patent and copyright do not have the same legal purpose. It is possible to have double protection for a piece of software, in the sense that an action involving the exploitation of a specific software can infringe the copyright protecting the programe code and the patent protecting the underlying ideas of the software. What can be gathered from this is that the protection of software by patent rights should not be considered as a legal alternative to the protection granted by copyright. Thus, it is advisable for an SME that develops new software to consider both types of protection.
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