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Computer Software

Computer Software can generally be protected by copyright law. Some computer software is also protectable by patents or by trade secret law as will be outlined below.

The German Law on Copyright (Urheberrechtsgesetz) has a section devoted to the copyright protection of computer programs. This section was introduced into copyright law in 1993 as a result of the European Union's Directive on the Legal Protection of Computer Programs. All the other member states of the European Union have implemented this directive and a number of countries in Central and Eastern Europe have similar provisions.

The European Patent Convention as well as the patent laws of many European countries state that "computer programs as such" are excluded from patent protection. However, this provision has been interpreted to mean that only those inventions are excluded which are implemented in software and which do not show a technical effect per se. The German Supreme Court has, however, gone further and stated that inventions implemented on a general purpose computer are per se technical and therefore opened the door for most software-related inventions to be patentable at least in Germany.

Trade Secret protection may be available in some instances if the ideas behind the computer program cannot be easily discovered by others. Currently there is no uniform trade secret law in Europe and as a result the protection accorded by trade secret law may differ from country to country.

The issue of patent protection for business methods imlemented by computers is unclarified. In the United States these can be protected by patents. The European Patent Office treats them sceptically and insists that there be a technical contribution to the art whereas the German Patent Court has stated that the implementation on a general purpose computer may be sufficient to allow the patenting of new and inventive business methods. See the press release: EPO not to search business method patents from 20 Aug 2001 for further brief information


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