Edited by Josef Drexl
Chapter 14: One, None, or a Hundred Thousand: How Many Layers of Protection for Software Innovations?
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 = http://eur-lex.europa.eu/LexUriServ/site/en/com/2002/ 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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