Conception and legal protection of software

Since software industry has shown important growth in recent years, the problem of the appropriate protection became even more actual than in the years of its establishment. Software Directive 91/250 concerns computer programs copyright works, but administrative and court’s decisions granted a numerous patents for computer-implemented inventions. For that reason, the current legal situation regarding patent protection in this field may be considered ambiguous and thus leads to lack of certainty. Under the European Patent Convention, computer programs are excluded from patentibility, but under certain circumstances patent could be granted. According to the European Patent Office attitude, the main condition for patentibility of computer programs is character, which opens the question of its definition. In that sense, it’s very useful to analyze EPO decisions. The Board of Appeal of EPO held, in Computer Program Product I&II that if a program on a carrier has the potential to produce further technical effect when loaded and run on a computer, such a program claimed by itself should not be excluded from patentibility. Taking into account the main differences between patent and copyright protection, and articles of subject matters relevant legal acts, proper protection of computer programs could be obtained by patent as well as copyright. In other words, their coexistence could be considered cumulative in the sense that copyright protection is accorded to the particular expression in any form of a computer program while patent protection covers ideas and principles which underlie any element of a computer programs.