Towards a New Instrument of Protection for Software in the EU? Learning the Lessons from the Harmonization Failure of Software Patentability
published in: G. Ghidini and E. Arezzo (eds), "Biotechnology and Software Patent Law: A Comparative Review on New Developments", Cheltenham, UK/ Northampton, MA, Edward Elgar, 2011, p. 153.
38 Pages Posted: 1 May 2011 Last revised: 19 Jan 2016
Date Written: January 25, 2011
While the European Parliament overwhelmingly rejected in 2005 the directive proposal on the patentability of computer-implemented inventions, the subject remains very controversial, particularly due to the fact that the European Patent Office has maintained its practice of granting patents on software matters. Therefore, a large number of questions are still pending. This article asks in a general manner and without any prepossession to what extent software can be patented in the actual state of the law. Within the scope of a socio-economic analysis, it then deals with the question of whether patent law is really the appropriate judicial instrument or if other tools (existing or to be created) must be taken into consideration.
Keywords: Protection of Software, Exclusion from Patentability, Definition of an Invention, Sui-Generis Right, European Patent Convention, Functions of Patent Law, Open Source, Bilski decision
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