Since its origins the software industry has tried to find a solution to defend the ideas internally formulated, and often involving considerable investments. It was at first thought of resorting to contractual agreements bounding to secrecy employees and clients, but soon it was found that this kind of protection was totally insufficient, as an employee leaving a firm would take with him a significant knowledge that he could have possibly used in other ways. For this it was thought of using one of two instruments known for protecting the intellectual works, the copyright and the patent; but the choice was the first one as the program was seen, and still is, as a way of expressing the human mind, comparable almost to a written work. Towards the seventies it was found that this instrument was unsuitable for the kind of desired protection as, if on one hand it allowed protecting the expressive form of a program, on the other hand it did not guarantee any exclusivity on the basic idea that is the real value of the software.
The usa experience
During those years the American jurisprudence started opening the door to the software’s protection by means of a patent, considering that this instrument would have better guaranteed the consumers, recognizing an exclusiveness only after an examination of the novelty and inventive step, an examination this which has become, or should have become, more complex and elaborate during the years, so much so that lately the copyright has been re-valued as a valid instrument of program’s protection.
The situation on software’s patents
At present, generally speaking, whilst all the programs are protected by the copyright, only those producing a “technical effect” are patentable and not all the programs.
The difference between patent and copyright
The difference between the two protections of the copyright and of the patent is substantial, and the real problem is the “reverse engineering”. The copyright secures programs such as literary work, for the way it is written in, therefore whenever another program carries out the same function, following the same steps, but written in a different way, there is no copyright violation. Therefore, this form of protection permits the “reverse engineering”: this is the reason why it is good for the independent developers and it is the same reason why the companies don’t consider it an adequate protection. The patent, on the other hand, protects the software itself, as long as there is a technical effect, from the point of view of the logical sequence of the steps it takes, either expressed in a logical form or algorithm.
From the Arabian “al-khuwarizmi”, in its turn from the Greek “arithmòs”, an algorithm is a general method of resolving a particular problem with a complete series of steps. It can be represented by a series of phases to follow, written one after another. With the algorithm the program is gained through a “codification” phase, this being the written form of the algorithm through a combination of instructions written in some program’s language specifying the steps to follow. A flow chart represents the algorithm and it shows all the steps, it is a more efficient and less ambiguous description than the one in words. After the flowchart, the programmer writes the source code, which is the text written in a programmer’s language to be translated into an accessible file. The source code is then converted into an object code, which substantially is the translation of the programme into machine language. What is then patented is the principle at the base of the programme, not its source code or object, which may not yet even have been created, regardless of the language used. In any case, the source code and the listing, even if existing, must not be deposited with the patent application because they can only be object of copyright.
Unfortunately, the “Proposal of regulation concerning the patentability of inventions produced by means of computers” of the 20.2.2002 COM (2002) 92, considered to try reconciling the various interests, has been rejected and we are waiting for a new proposal to be examined at European level.