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Case law in Germany
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?)
Described by FFII as a landmark case:
1986: Rolling Rod Splitting
1999: Digital Circuits
- Full name: X ZB 11/98 – Digital Circuits, 13th December 1999
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
- (in German) BPatG Fehlersuche 2000-07-28: computer program product ([?] English translations: Google, Babelfish)
2002: Error searching
- (in German) FFII page about the 2002 ruling with "forces of nature" ([?] English translations: Google, Babelfish)
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.).'
- (in German) German Federal High Court ruling, January 20th 2010 "GBH X ZB 22/07" ([?] English translations: Google, Babelfish)
2010, April: MS FAT patent upheld
- (see also: Microsoft's FAT patents)
- German appeal court upholds Microsoft FAT patent, The H, April 2010 (also: slashdot story)
- Federal Patent Court declares FAT patent of Microsoft null and void, The H, April 2007 (also: slashdot story)
- FATal patent ruling in Germany?, by Florian Mueller
- (in German) WINDOWS - Dateiverwaltung beruht auf, patentfähiger Erfindung ([?] English translations: Google, Babelfish)
2010, May: document generation patent upheld
In May, a German court published this April 20th decision:
(That page includes links to machine translations)
Which Florian Mueller says is a pretty clear endorsement of software patents:
2010, May: Microsoft Fat patent upheld
In June, a German court published this April 22nd decision:
Related pages on en.swpat.org
- German patent courts and appeals
- Software patents exist in Europe, mostly
- Case law in the UK
- Court cases and lawsuits
- Countries and regions
- Reading case law
- Controllable forces of nature - a proposed test, mostly based on German case law
- German high court declares all software potentially patentable, 19 May 2010, Florian Mueller
- Some problems of patent law from a German viewpoint, page 184, by Klaus-J. MELULLIS, Presiding judge at the Federal Court of Justice, Karlsruhe, Germany.
- Patent Jurisprudence on a Slippery Slope, by FFII - the links on this page are extensive and have descriptions, and they're almost all about Germany, such as:
- Page about a 1976 BGH decision
- German Federal Court of Justice Confirms New German Approach To Software Patent Examination (BGH X ZR 121/09), 23 July 2011, ksnh::law
- Apple Wins German Patent Case Against Motorola Mobility, 1 Mar 2012, Bloomberg
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