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Research Handbook on Intellectual Property and Competition Law

Research Handbook on Intellectual Property and Competition Law

Elgar original reference

Edited by Josef Drexl

This comprehensive Handbook brings together contributions from American, Canadian, European, and Japanese writers to better explore the interface between competition and intellectual property law. Issues range from the fundamental to the specific, each considered from the angle of cartels, dominant positions, and mergers. Topics covered include, among others, technology licensing, the doctrine of exhaustion, network industries, innovation, patents, and copyright.

Chapter 14: One, None, or a Hundred Thousand: How Many Layers of Protection for Software Innovations?

Gustavo Ghidini and Emanuela Arezzo

Subjects: economics and finance, law and economics, law - academic, competition and antitrust law, intellectual property law, law and economics


Gustavo Ghidini and Emanuela Arezzo* 1 Introduction In 2002, the European Commission embarked on the arduous project of drafting a Proposal for a Directive (hereinafter PD) on the patentability of computer-implemented inventions (so-called CIIs).1 The PD was officially aimed at harmonizing different trends that had emerged in national patent systems and creating a uniform regime following, more or less, the blueprint drawn up by the European Patent Office (EPO) case law.2 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 small and medium-sized enterprises (SMEs).3 Quite rightly, the European Commission thought that uniformity in the law would enhance legal certainty and thus confidence in patents as a valuable instrument to foster progress in such a prominent sector of the European economy. At the same time, however, the PD reflected a ‘defensive’ concern: the massive number of software patents (especially those concerning business * This chapter reflects opinions and ideas mutually shared by the authors. However, sections 2, 4 and 5 can be ascribed to Emanuela Arezzo, while the remaining paragraphs are attributed to Gustavo Ghidini. 1 See the first Commission Proposal of 20 February 2002 for a Directive on the patentability of computer-related inventions presented by the European Commission, COM(2002) 92 final = com2002_0092en01.pdf, accessed 4 November 2007. 2 See section 2.2 infra. 3 An example of diverging trends has been registered,...

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