“One, none or a hundred thousand: How many layers of protection for software innovation?”

In 2002, the European Commission embarked in the arduous project of drafting a Proposal of a Directive (hereinafter PD) for the patentability of computer implemented inventions (so called CIIs). The PD was officially aimed at harmonizing different trends emerged in national patent systems and creating a uniform regime following, more or less, the imprinting drawn by the European Patent Office case law. Such discrepancies within (software) patentability trends in Europe were considered a further obstacle towards the creation of a uniform patent policy in the EU and, consequently, discouraging the recourse to patent, especially by SMEs. Rightly, the European Commission thought that uniformity in the law would enhance legal certainty, hence confidence in patents as a valuable instrument to foster progress in such a prominent sector for European economy. At the same time, however, the PD reflected a “defensive” concern: the massive number of software patents (especially those concerning business methods) released in U.S.A. and the seemingly huge numbers of European patents granted to American patent applicants in Europe had stimulated a severe restrictive approach towards the patentability of software “as such” and business methods — an approach which in particular permeated the amendments proposed by the European Parliament. The same defensive concern probably motivated, aside from its (official and unofficial) goals, Commission’s decision to preserve copyright protection for computer programs, as per Directive 250/91. Indeed, the reason of such decision, which ostensibly carries no contradictions, surely lied in a desire to maintain an alternative means of protection for European firms — mostly SMEs — accustomed to protect software through a much cheaper and easy-to-obtain tool. As well known, the defensive concerns expressed above eventually prevailed and, almost at the end of a tortuous and complex legislative iterprocess, in July 2005 the European Parliament rejected, in second reading, the Council’s Common Position which led to the definitive closing of the procedure. The dismissal of the PD has been applauded throughout Europe as a victory against evil, especially by the European supporters of the open source movement, fearing that the adoption of the Directive would put an end to open source licensing practices. The legislative process has attracted a big deal of attention and since the very beginning of the drafting process the European Commission has been blamed to serve foreign interests. However, as noted by Commissioner Ferrero-Waldner, the PD failure does not amount to an elimination tout court of the patentability of CIIs. Quite on the contrary, it simply means that there will not be any harmonization at the European level. Everything will stay the way it was before, which means that computer implemented inventions will still be granted by national patent offices and by the EPO, whose prominent role in such central area of patent policy has become even more stronger. So, what is the future of European software industry going to look like? Should we try to convince the EPO to step back, erase a twenty years old case law, and just leave the floor to copyright protection? Are patents truly bad for our economy? Is copyright really the best alternative? This article will try to answer at least some of these questions, hoping that the answers that we will provide might be of (at least little) guidance on how to deal with the problem at issue.