A Comparative Review of New Developments
New Directions in Patent Law series
Edited by Emanuela Arezzo and Gustavo Ghidini
Chapter 7: Towards a New Instrument of Protection for Software in the EU? Learning the Lessons from the Harmonization Failure of Software Patentability
* Reto M. Hilty and Christophe Geiger INTRODUCTION Who would have thought that patent law, a subject previously considered complicated and difficult even among legal experts, would attract considerable public interest and give rise to such passionate discussion? Until recently, the future of this subject matter was decided within small circles, far removed from the eyes of the public. That is clearly in the past, as demonstrated by the enormous wave of protest against the gradual recognition of what is called – somewhat imprecisely – ‘software patentability’.1 This is certainly not the only field of intellectual property law in the limelight, if we think, for example, about the heated debate over the future * This chapter is an updated and amended version of an article previously published in the International Review of Intellectual Property and Competition Law (IIC) 2005, 615. 1 In fact, the concept of ‘software’, which will be treated here, is larger than the concept of ‘computer program’ since it contains the supporting documentation (see in this sense M. Vivant & J.-M. Bruguière, ‘Protéger les inventions de demain’, under the direction of M. Vivant, ‘La Documentation française’ 16 et seq. (Paris 2003); J. Weyand & H. Haase, ‘Anforderungen an einen Patentschutz für Computerprogramme’, 2004 GRUR 198, note 1, for English-language version ‘Patenting Computer Programs: New Challenges’, 2005 IIC 647). We will nevertheless use both expressions as synonyms, with regard, on the one hand, to the practice of not making that difference, and more obviously, on the other hand, to the...
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