Under the provisions of the European Communities (Legal Protection of Computer Programmes) Regulations, 1993 (the 1993 Regulations) copyright in an original computer programme is protected. However, as copyright only protects the expression of an idea and not the idea itself, copyright law will not protect the ideas and principles, which underlie any element of a computer programme or its interfaces.

Copyright in an original computer programme subsists in the same way as it does in an original literary work, provided it is not the reproduction of another programme.

The Irish Parliament is currently discussing the Copyright and Related Rights Bill, which on enactment will consolidate the law in this area. The existing provisions of the 1993 Regulations are re-stated in the Bill. In June 2000 the EU Council of Ministers agreed on a Copyright Directive, which is intended to deal with the harmonisation of Copyright, and related IP Rights within the EU.

1.1 The Rights of the Copyright Owner

The exclusive rights of a copyright owner in a computer programme include the right to do or authorise the following:

1. the permanent or temporary reproduction of a computer programme by any means and in any form in whole or in part. Insofar as loading, displaying, running, transmission or storage of the computer programme necessitates its reproduction, such acts shall be subject to authorisation by the rightholder;

2. the translation, adaptation, arrangement and any other alteration of a computer programme and the reproduction of the results thereof, without prejudice to the rights of the person who alters the programme;

3. the distribution to the public in any form, including the rental of the original computer programme or copies thereof.

These exclusive rights of a rightholder in relation to reproduction, translation, adaptation, arrangement and any other alteration of a computer programme are qualified to some extent once another person has lawfully acquired the computer programme.

1.2 Securing Copyright Protection

Copyright subsists automatically on the creation of a work and there is no requirement under Irish law to register copyright once a work qualifies for copyright protection. It is a good idea to mark the introduction page and important menus as "© to the author". Copyright will also subsist in any user manuals and related documentation so these should be similarly marked.

1.3 Copyright Term

Under Irish and European law copyright subsists for the lifetime of the author and 70 years after the author's death, irrespective of the date when the work was published or otherwise lawfully made available to the public.

2. PATENTS- PROTECTION OF IDEAS

Patent law protects the ideas or the underlying principles of an invention. A patent gives the rightholder the right to prevent third parties from making, using, or commercialising the invention during a maximum period of 20 years without the rightholder's consent. A patent, just like any property, may also be sold or licensed by the rightholder.

2.1 Types of Patents

Patent applications can be filed with the Irish Patents Office or with the European Patents Office (EPO) established under the European Patent Convention (EPC) by the participating countries to the Convention which included Ireland. A single patent application lodged with the EPO can result in the grant of a patent in each of the participating countries of the EPC.

It is also possible to apply for a patent under the Patent Co-operation Treaty (PCT). This enables the applicant to apply for a Patent in several states world wide with a single patent application, and the Patents resulting from such applications operate as national Patents and national laws apply.

2.2 General requirements for Patentability

For an invention to be accepted as a being of a patentable character the following requirements for patentability must be met:

• The invention must be new.

This means that the invention has not been made public by written or oral description, by use, or in any other way before the date of filing of the Patent.

• The invention must also represent an inventive step.

This means that, from the point of view of a person skilled in the relevant area of technology, the invention does not obviously follow from the state of the art (i.e. what has gone before).

• The invention must be industrially applicable.

The invention must be capable of being made or used by industry

2.3 Patentability of Computer Programmes

Can a computer programme be patented as an invention?

For any invention to be patentable it must satisfy the requirements for patentability. In Ireland, the relevant legislation is the Patents Act, 1992. Section 9(2)(b) of this Act provides that a computer programme shall not be regarded as an invention capable of being patented. This provision mirrors the provisions of the EPC. Article 52(2) EPC provides that computer programmes regarded, as such, are not to be regarded as patentable inventions. At first glance it would seem that computer programmes can not be patented. This is however an in complete picture. Patents are granted for software related inventions.

What distinguishes a computer programme from a software related invention?

A software related invention may be patentable as an invention when, considered as a whole, it satisfies the criteria for patentability. That is to say; where it is novel, contains an inventive step and is capable of industrial application. In assessing whether these criteria are satisfied or not, the technical features of the invention must not be separated from the non-technical features. Above all, the invention must be one, which is technical in nature. This is the crucial test

To be patentable the software related invention must be based on a technical problem and must contribute to the prior art. The examiner will consider the difference between the closest prior art and the claimed invention. If the examiner is then satisfied that the objective problem purporting to be solved by the software related invention and the proposed solution encompassed in the computer programme, when seen as a whole, is technical in nature, then the computer programme may be considered to be the means of delivering the solution and may be part of the patentable idea.

The EPO has in fact authorised patentability of computer systems as well as computer methods where they have been satisfied that, taken as a whole, these inventions constitute a technical contribution to the prior art. Such inventions have been found to be patentable because they comprised specific features, which involved technical considerations during the conception of the programme and prior to the writing of the sequence of steps in the programme. It remains to be seen whether the national Courts will follow this interpretation by the EPO.

Could this area of Patent Law be clarified? One could argue for the amendment of Article 52(2) EPC by cancelling any reference to "computer programmes". However, it is important to remember that the underlying test for patentability would remain. To be patentable the invention comprising or consisting of a computer programme must be technical in nature and must satisfy the requirements for patentability. It is therefore not certain whether in practice, any significant change in interpretation by the EPO would result from such a change.

For further information or general enquiries contact: -
Patrick Ryan
Email: pryan@kilroys.ie
Telephone: +3531-439 5600
Fax: +3531-439 5601/439 5602

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