“Patent and copyright paradigms vis-à-vis derivative innovation: the case of computer programs”,

Since the enactment of Directive 91/250 EEC, software developers – especially SMEs – have adopted copyright as the primary tool of protection for computer programs, which cannot be patented “as such” according to the conjunct reading of Art. 52(2)(c) with 52(3) of the European Patent Convention. However, patent protection of software-related inventions has been regularly granted by the European Patent Office and several national courts, recently emerging as the preferred alternative for an increasing number of program developers and software houses. In 2002, in order to harmonise at Community level the application of patent law by national courts to such inventions, the Commission drafted a Proposal for a Directive on the patentability of computer-related inventions. However, within the Proposal’s framework, patent protection is not purported to supplant copyright, but rather to coexist (peacefully?) with it. This paper aims at analysing, firstly, how patent and copyright law address the case of derivative innovation in the software market and, secondly, the likely consequences that the coexistence of the two paradigms would have on such inventions.