Can software be patented? In Italy, in line with the main countries participating in the European Patent Convention, computer programs “as such” are excluded from patent protection. However, the legislation was made clearer when the EPO introduced “computer-implemented inventions.”
A computer-implemented invention can be patented and protects the functionality of the software and how it is achieved at a higher level than the code level, more similarly to a method patent.
Consequently, the related programming language/environment or the forms in which the algorithms are written are not protected: it is necessary that the execution of the program generates a technical effect (internal to the computer, for example in the management of hardware resources, or external to the computer, for example by controlling a piece of equipment) beyond the normal interaction between program and computer.
The patent for invention will protect the method and/or logic at the basis of the software, regardless of its specific implementation.
A useful question you may ask yourself in order to immediately understand that a software is not patentable is the lack of a technical problem that the program solves with a new and inventive solution compared to the state of the art.
By way of example, a system engineer who invents a new and inventive method of balancing the workload on a computer network (defining which computer will perform which task) may implement the invention entirely in the software and it can be patented, just as, for example, the traction control system of a vehicle: the assessment is always made on the basis of the fundamental aspects of novelty and inventive step.
How can I protect the source code?
Conversely, it is always possible to resort to Copyright since programs can be identified as intellectual creations, at the source code level.
In this case the source code of the program is registered (and/or the application), but relative interfaces (consisting of graphic, verbal, phonetic elements…) or elements that the program provides in response may also be subject to protection, also by means of design right.
Graphic elements can also be protected by means of trademark and design rights.
The duration of copyright in Italy is 70 years from the death of the author. There are different durations depending on the type of creative work.
Copyright is also further applied to sites published on the Internet, as a website may consist of a particular innovative structure containing text, images, sounds and other that are of course protected by copyright.
It should be noted that the various forms of intellectual property rights (Patent for Invention, Trademark, Design, Copyright) are not mutually exclusive.