Intellectual Property Rights concern protection of the information. There are no fences in this field and it is quite possible to lose the privileges stemming from IPRs easily. If an information doesn’t enjoy one of the IPR protection, then it is open to be infringed. Further, sometimes the information could fall under several IPR and in this case, it should be assessed which IPR protection is better for that subject matter.

Definition of software

First of all it should be defined what is a software and what are the components of it. According to the European Patent Office, the term “software” is ambiguous so that it should be replaced with something more accurate with the meaning which is “computer-implemented invention”. The definition which was conducted by the EPO is a computer-implemented invention is one which involves the use of a computer, computer network or other programmable apparatus, where one or more features are realized wholly or partly by means of a computer program.

These CIIs are protected under the copyright law according to the Berne Convention which is clearly expressed in the WIPO Copyright Treaty Article 4. A copyright is one of the protection of the IPRs and it protects the creations of human minds in the form of literary and artistic works.

Subject of possible patent

CIIs can be called “inventions” either because they are innovations at some point. So that they can be protected under the patent law because it is frankly specified that every invention can be patentable under some circumstances. But for the protection of the patent law it should have some other features. Firstly, the invention should fall under the scope of patentable subject matter. Patentable subject matter is set in the Article 52(1) of the European Patent Convention and the exceptions of the subject matters are expressed in the second clause. According to the 52(2), there is a list of exceptions which kind of inventions cannot be patentable and programs for computers are in the list as cannot be patentable subject matter. However, to the extent of this provision, EPO published the “Patents for software?” and explained how Article 52/2-c of EPC should be interpreted. According to the explanation, these exceptions are for only if they are asked to be granted a patent as such. Therefore, it means that if a computer program has a technical effect on a technical problem, it can be a patentable subject matter. Because when an invention is asked to be patented, the actual request under that is to solve a solid problem via that computer program. Thus, EPO emphasizes that if a computer program provides a “further technical effect” on a specific hardware, it might be patentable. This effect should provide an additional effect to the device more than its normal condition.

After the software is considered as a patentable subject matter, the other requirements for granting a patent are novelty, inventive step and industrial applicability. If a software carries all the necessities then it can be patented by EPO for up to 20 years. Under the patent rights, the patented invention cannot be used, produced, distributed, sold or made for commercial purposes without the consent of the patent owner. Patent owners can only exploit their rights in the territories which are granted and in a limited period of time but they cannot renew their patent or extend it.

Copyright protection of software

As we mentioned above, softwares are protected under copyright so that it should be shown what a copyright provides to its owner. Copyright law provides two different rights to its owners: Economic Rights and Moral Rights. Under the economic rights, the owner has the ability to exploit the work economically such as licensing for remuneration or selling the work. The copyright owner has full control over the work and whether it is used or not. Under the moral rights, the author has a right to claim the authorship and he/she has a right to reject the alteration of any kind of changes over the work. According to the Berne Convention Article 7, the duration of a copyright granted has been protected for the author’s lifetime and after his/her death for fifty years. In a comparison between the patent protection, copyrights have a longer time protection than the patent.

Directive 2009/24/EC on the legal protection of computer programs

In respect of the EU approach, there is a directive which sets general principles for the legal protection of computer programs which is called Directive 2009/24/EC on the Legal Protection of Computer Programs. The aim of the Directive is a sort of suggestion to the EU countries to protect the computer programs under the copyright law. The Directive indicates that it is protected any form of expression of a computer program similarly to the WCT Article 4 which states that all computer programs whether their source code or object code, are protected under this provision. Directive emphasizes that the authors of the computer programs have the right to authorize the others to reproduce, translate, adapt or distribute the program.

There are different approaches to the patentability of the computer programs globally and it should be determined what are these touches, their similarities and differences in the jurisdictional point of view. Firstly, it has been discussed the EPO approach and it allows the patentability of the computer programs in terms of such conditions mentioned above. In the light of the EPO’s point of view on the issue, Turkey, which is one of the EPO member countries, has a tendency to exclude the patentability of computer programs as a principle. Although, according to the Industrial Property Code (the law no 6769) Article 82/2-C excludes the computer programs to be patentable but Türk Patent which is the institution issues the patents in Turkey indicates that computer programs cannot be protected as such by patent law unless there is a technical device which enables by that computer program can be patentable.

According to the U.S. approach regarding the software patents, the Supreme Court foreseen a two-step test to analyze the patentability of a claim. Firstly, it has to be clear that if the claim is directed to an abstract idea or not. The 2019 Revised Patent Subject Matter Eligibility Guidance has explained what this “abstract idea” is. They grouped the abstract ideas as Mathematical Concepts, Certain Methods of Organizing Human Activity and Mental Processes. If a claim is found that directed to one of these abstract idea then second part of the test comes up. As the second part of the test, the applicant should demonstrate that there is an inventive step that allows to convert that abstract idea into a patentable subject matter. Similarly to the EPO approach, the applicant should target to obtain a patent for the result of the claims. Therefore, in a sum of the claims consists of the patentable subject matter and in this context if the application contains the request to be patentable of the abstract claims, this cannot be allowed. Unlike the EPO, USPTO doesn’t seek a “further technical”effect on a specific device. It is primary to be convertible of an abstract idea to a concrete result with an inventive step.

Melike Alkaya Erdogan