Towards a New Instrument of Protection for Software in the EU? Learning the Lessons from the Harmonization Failure of Software Patentability

While the European Parliament overwhelmingly rejected in 2005 the directive proposal on the patentability of computer-implemented inventions, the subject remains very controversial, particularly due to the fact that the European Patent Office has maintained its practice of granting patents on software matters. Therefore, a large number of questions are still pending. This article asks in a general manner and without any prepossession to what extent software can be patented in the actual state of the law. Within the scope of a socio-economic analysis, it then deals with the question of whether patent law is really the appropriate judicial instrument or if other tools (existing or to be created) must be taken into consideration