Patent and Copyright Protection
European Patents
Dutch Patents
Computer programs are protected by copyright. Generally, copyright protects the perceptible form or expression of a work. In the case of computer programs, copyright protects the source codes, object codes and graphic user interfaces to the extent that they have their own individual character and bear their maker's hallmark. In practice, these requirements are easily met. The possibility of patent protection for computer programs is less well known.
Patent and Copyright Protection
Patent protection for computer programs is already firmly rooted in the case law of the European, Dutch and US Patent Offices. If a computer program entails an invention, it is in principle - and in certain circumstances - entitled to patent protection under European patent law. During his patent's period of validity, a patent owner can forbid others from performing various commercial acts involving the invention. These include the manufacture, sale, use and offer of products of which the invention is a component, as well as the performance of procedures comprising the invention. Because patent protection covers the function of the computer program, it is in many ways a more effective tool for competing on the market than copyright.
First, patent protection is wider than copyright protection and extends to almost any commercial act involving the invention. Second, a patent protects the function of a computer program whereas copyright only protects its form or perceptible expression (although copyright protection can be circumvented easily by making a program with the same function in different lines of code and with a different graphic user interface). Thus, patent protection is essential in order to protect the function of a computer program. Third, a granted patent is relatively hard evidence that at a certain date (ie, of filing the patent application) the patentee was the first to have invented the product or method entitled to patent protection.
However, there are also disadvantages to patent protection. When applying for a patent, the invention must be disclosed in detail. This means that the computer program, in all its detail, will become public knowledge. In addition, drafting a patent application is relatively expensive and requires extensive cooperation between the inventor and a patent attorney; the grant procedure is fairly long (between six months and several years) and an annual fee, which increases towards the end of the patent protection period, is payable. Further, only inventions that are found to be new, to involve sufficient inventiveness and to be capable of industrial application are ultimately entitled to patent protection.
One of the reasons why numerous cases have been heard before the European Patent Office (EPO) regarding the patenting of computer programs is because the European Patent Convention provides that computer programs "as such" are not regarded as inventions and, therefore, are not subject to patent protection. This explicit exclusion in the convention (which also appears in the Dutch Patent Act of 1995) may have made many companies/inventors reluctant to apply for software patents until now.
Since 1985 the EPO has moved towards a narrow interpretation of the "computer programs as such" exclusion in the convention, thus paving the way for the protection of software-related inventions. In 1986 the EPO allowed the patenting of a method for the digital processing of satellite images, which was embodied in a computer program. Ten years later, a computer system for the management and integration of different information systems within a company was deemed protectable by the EPO because the invention involved "technical considerations". The EPO decided that the purpose or goal of the invention did not have to be technical.
Until 1998 patent protection of computer programs was still limited because the EPO interpreted the exclusion of "computer programs as such" so as to cover computer programs on carriers (eg, CDs or tape). Because the carriers containing computer programs were excluded from protection, a patentee could never invoke his right against third parties offering, selling or distributing copies of the computer programs on carriers. In effect, the only act that would constitute an infringement was the execution of a patented program or the performance of a patented automated process by an end-user. This restriction greatly undermined the enforcement of patents for computer software.
Since 1998 the EPO has considered the patentability of two IBM patent applications, both of which explicitly claimed protection for the program as a product (on a carrier). Eventually, the EPO made a turnaround and, in principle, allowed protection for computer programs as a product and/or on a carrier. With these two decisions, the EPO has enabled a logical and sufficient patent protection system for computer programs.
The only remaining specific requirement for patentability of computer programs is that the program or its execution should have "a further technical effect" (ie, a technical effect extending beyond the usual technical or electronic interaction between hardware and software that has been loaded onto the hardware).
The EPO has not yet clarified the exact meaning and scope of "further technical effect". However, it is likely that a method for doing business, which is contained in a computer program and which does not generate technical results or further a technical process will be deemed to lack a "further technical effect". It is unclear whether the EPO will also allow the patenting of automated methods for doing business.
Under the old Patent Act of 1910, the Dutch Patent Office (DPO) took the position that a computer program could be subject to patent protection in conjunction with a machine for its execution. The DPO did not impose the requirement of a "technical effect" but instead required that the execution of a program constitute a "change in nature". In the most recent decisions available from the DPO (from 1990), it was decided that the transformation of data (including selection) could be regarded as a change in nature.
The DPO appears to apply a broader criterion than the EPO. However, all the relevant rulings were made before the Dutch Patent Act of 1995, which formally complies with the exclusion from patent protection of computer programs "as such", as laid down in the European Patent Convention. In principle, the DPO's policy should not deviate substantially from that of the EPO. It remains to be seen whether the DPO will continue on its own path or follow the EPO's case law.
For further information on this topic please contact Peter Burgers or Ruprecht Hermans at NautaDutilh by telephone (+31 20 5414940) or by fax (+31 20 5414700) or by email ([email protected] or [email protected]).