The law of 13 July 1978 on patents formally exclude the patentability of COMPUTERS for PROGRAMMES in Article 6, but the case was quickly recognized that a patent application which one or more claims included in the steps of a process, an algorithm or even a genuine software, is regarded as acceptable, both in France than in many other countries (Europe, USA, Japan ..), insofar as the process leading to a result industrial concrete, or if the software was in itself a MEDIUM leading to a result industry.You can define a program as a “series of instructions necessary for the functioning of a computer.”
The law of May 10, 1994 (Article 111-2 § 13 of the Intellectual Property Code) formally introduced the software protection for “works of the mind” protected by copyright, while maintaining their exclusion from patentability, but we feel that the legal edifice is in the process of collapse and that the patentability of software is being trivialization …
The IP Code contains several provisions that are exceptions to copyright, as established by the old law of 11 March 1957 on copyright:
They are, in essence, Articles L. 113-9, L. L 121-7 and 122-6 and L 122-6-1 and L. 122-6-2 of the Intellectual Property Code, which establish the rights of software authors: (Act No. 94-361 of 10 May 1994, art. 1 to 5). We are the main clauses:
113-9: Except statutory provisions or stipulations contrary, property rights on software and documentation, created by one or more employees in exercising their functions or following the instructions of their employer are devolve to the employer which alone is empowered to exercise them. ”
Any dispute regarding the application of this article is submitted to the Tribunal de Grande Instance of the headquarters of the employer. The first paragraph of this Article shall also apply to state employees, public institutions and public administration.
(similar provisions for the creation of employees. See also: fraud)
L.121-7: Unless more favourable to the author of software, it may not:
1 ° - Oppose the software modification by the assignee of the rights mentioned in 2 of section L 122-6 when it is not detrimental to his honour nor his reputation.
2 ° - Exercising its right of withdrawal or repntir
L.122-6-1: (partial) II.-the person having the right to use the software can make a backup copy when it is necessary to preserve the use of software.
Some of these provisions penalize schools who should buy as many copies of software they have computers for their students. The “site licenses, and price reductions in quantities can be a solution. There is also a problem when the publisher of a software protected disappears, users who are then deprived of any assistance.
The decompilation (1) software, (publishing source code for an adaptation for interoperability software), is permitted under certain reservations, by Directive 93/98 of 29 October 1993, EU
CHANGES to PATENTABILITY SOFTWARE
Over the past fifteen years, jurisprudence and doctrine evolved into a true patentability of software as tels.Quelques decisions were already in this direction, including stops VICOM of 15 July 1986 and KOCK 21 May 1987 which confirmed that software associated with a process was patentable. Only the software “naked” remained excluded. The European Patent Office adopted the same position.
But the movement is accelerating in many countries and, for example, there are currently nearly fifty thousand patent application on the four hundred thousand requests each year in Japan, and a relatively large number (one cited figure twenty miles) to the Patent Office of the USA, which began to accept them from February 1996. The OEBen had issued approximately thirteen miles until early 2000.
In terms of principles, it seems that software is patentable if it does not limit itself to protect the source but the technical aspect and functionality, so as to meet the criterion of industrial application, in addition to the novelty and the level inventive.
It seems likely that the software will be able to enjoy double protection system, or as patentable subject matter, is under creation of the spirit, under the copyright.
Over the past decade, jurisprudence and doctrine evolved into a true patentability of software as tels.Quelques decisions were already in this direction, including stops VICOM of 15 July 1986 and KOCK 21 May 1987 which confirmed that software associated with a process was patentable. Only the software “naked” remained excluded. The European Patent Office adopted the same position.
The draft European Directive on 20 February 2002 brought more confusion than clarity … In the meantime, the patent system software operates on a roughly satisfactory, and more than 30 000 patent applications have already been filed the EPO The jurisprudence which stood at the O. E.B. has helped clarify what is patentable or not: it introduces the criterion of the requirement for a contribution of a technical nature and not only conceptual and intellectual, but the problem will lie primarily in the examination and conflicts. The judges will not encounter problems intractable when it comes, for example, to decide on the infringement of a source code involving tens or hundreds of thousands of lines. They souhaire much fun. As for “business methods” they seem, for now, remain outside the scope of patentability, at least under the European Patent Office.
But the movement is accelerating in many countries, and there are currently nearly fifty thousand patent application on the four hundred thousand requests each year in Japan, and a relatively large number (on a quoted figure of twenty thousand) to ‘Patent Office of the USA, which began to accept them from February 1996. The OEBen had considered approximately thirteen miles until the end of 1999, and told, about 30,000 until 2002.
In terms of principles, it seems that software is patentable if it does not limit itself to protect the source but the technical aspect and functionality, so as to meet the criterion of industrial application, in addition to the novelty and the level inventive, and perhaps also the “originality”.
One can consult the excellent website http://www.legalis.net, and the following document: “Patenting software”, the work of CUERPI, headed by Mr J.-L. GOUTAL, Special Issue of Journal of Law advanced technologies, vol. 9, No. 122/2002, published in “Science Hermes Publications, Lavoisier. 270p.
On 24 September 2003, the European Parliament has voted (majority 364 votes, 153 against and 33 abstentions) the European directive on the patentability of software. It had raised many controversies, and the vote has been acquired after 120 amendments. Details will be provided as soon as we can have the full text of the directive and the date it enters into force in the positive law of different countries of the European Union.

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