Software Patents in Europe

Article by Caroline Barton

Software patenting has long been a controversial area of European law. Aiming to harmonise the different approaches taken by Member States, the European Commission has adopted a proposal for a Directive on the patentability of computer-implemented inventions. Caroline Barton of City law firm Field Fisher Waterhouse looks at whether this Directive will achieve its aims.

How should the law protect rights in computer programs?

Although computers have been around in one form or another since Charles Babbage designed his Analytical Engine in the mid-19th century, it was not until the mid-1970s that the first consumer computers and programs were produced. The commercialisation of computers brought with it the need to protect the investment of time, skill and money that had gone into creating these products. At that time, copyright law seemed to be the best way of protecting computer programs, since direct automated copying is the easiest way of appropriating the skill that went into creating the program.

During the 1980s, it became apparent that some aspects of copyright law would need to be amended to ensure adequate protection of computer programs. In the US, the Copyright Act 1976 was amended in 1980 to include a definition of computer programs (although US copyright law does not contain an exclusive list of works which could be protected by copyright, since the US Constitution provides that Congress shall have a general power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Investors the exclusive Right to their respective Writings and Discoveries").

In the UK, the Copyright Designs and Patents Act 1988 protected computer programs for the first time, as "literary works". As the creation and licensing of software became an increasingly important part of trade among EU Member States, the Software Directive 1991 sought to harmonise the copyright protection of computer programs throughout the EU. It also gave protection to the preparatory materials for computer programs. Likewise, the World Trade Organisation's TRIPs Agreement 1994, declared that "computer programs, whether in source of object code, shall be protected as literary works under the Berne Convention" (Article 10 (1)).

However, copyright protection only protects against copying - if an identical computer program is produced without the benefit of seeing the original then there is no infringement. Despite the...