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This article describes the different positions of the open source proponents versus the “traditional intellectual property approach” towards the so‐called computer‐implemented inventions. It analyses the position of both sides regarding the European Commission proposal on the patentability of computer‐implemented inventions, and tries to clarify the confusion and misunderstanding that followed this proposal. The article first focuses on the reasons that could justify providing patent protection on computer‐implemented inventions, in particular how the gradual growth of computer technology is having an increasing effect on the performance of inventions. Second, it examines the three main risks that the EU proposal was said, by some open source lobbies, to introduce: the overprotection of computer programs; the blocking effect in interoperability; and its negative impact on innovation and software development. The article evaluates these risks and provides reasons and arguments that show that they were overestimated. It also shows that no hard empirical data have been provided to support conclusions over the negative impact of computer‐implemented inventions on innovation. Third, the article analyses if the legal provisions of the EU proposal on the patentability of computer‐implemented inventions could have brought positive effects in terms of legal certainty. In this respect, the article considers that both the definition of computer‐implemented invention and the criteria to evaluate the patentability of such inventions were a bit disappointing. Finally, the article considers any new legal initiative to endorse patent protection on computer‐implemented inventions to be positive.
