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Case law in Germany

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Germany has software patent case law and is a signatory of the European Patent Convention.

For explanation of how the German system works, see German patent courts and appeals. Most importantly, remember that German courts don't always examine the complete validity of patents. When a decision is appealed, the appeal may be about a single aspect instead of the whole case. So if two companies have a dispute about a software patent where each says that they invented it first, the court may be asked to rule on the issue of who had the idea first, and won't look at whether the patent covers valid subject matter. A court may thus "uphold" a software patent, but the ruling may have no consequence for the question of whether software patents are valid are not.

(Can you help? Can someone check if this case really upheld a software patent?)


1976: Dispositionsprogramm

Described by FFII as a landmark case:

1986: Rolling Rod Splitting

1999: Digital Circuits

This important ruling introduced the test of "controllable natural forces".

This legal wording was used in the EU by the anti-swpat campaign in September 2003.

2000: Computer program product

2002: Error searching

2006: Judge Mellulis' comments

The following are comments made by Judge Mellulis of Germany's Bundesgerichtshof at a Symposium of European Patent Judges in September 2006. They were quoted in the UK's 2008 ruling on Symbian v. Comptroller General.

"[his court] proceeds from the assumption that the prohibition on the patenting of software 'as such' means what the law says ... software is not patentable merely by virtue of being used in conjunction with a general-purpose computer"

Deprecating the reliance on the word "technical", he noted:

"when assessing software as such, the program's interdependence with the technical device makes the technical content hard to deny"

2006: UK's Lord Justice Jacobs' comments on German case law

The UK 2006 Aerotel v. Telco ruling, page 49, notes:

"129. Two cases of the German BGH were brought to our attention. The first was Sprachananlyseeinrichtung (language analysing device) 11th May 220 X ZB 15/86 GRUR 200 1007, 454 OJ EPO 8-9/2002. The headnote accurately states the holding:
“(a)An apparatus (computer) which is programmed in a specific way has technical character. The applies even if texts are edited on the computer.
(b) For the purpose of assessing the technical character of such an apparatus it is not relevant whether the apparatus produces a (further) technical effect, whether technology is enriched by it or whether it makes a contribution to the state of the art.”
130. For reasons we confess we do not fully understand the BGH considered that the case was not concerned with the computer program as such exclusion. It therefore did not find it necessary to consider the EPO case law on the point. Significantly, in the more recent case of Jesco Schwarzer 28th September 2004 17
131. W (pat) 31/03, the BGH appears to have some reservations about Sprachananlyseeinrichtung, refusing to extend it to the image processing system of the claim because it was basically a claim to mathematical method as such even though it would implemented by a computer. Most significantly, however, the BGH declined to follow Hitachi (see para 3.2.2.).'

2010, January

2010, April: MS FAT patent upheld

(see also: Microsoft's FAT patents)

2010, May: document generation patent upheld

(See: Xa ZB 20/08 (2010, April, Germany))

In May, a German court published this April 20th decision:

Which Florian Mueller says is a pretty clear endorsement of software patents:

2010, May: Microsoft Fat patent upheld

(See: X ZR 27/07 (2010, April, Germany))

In June, a German court published this April 22nd decision:

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