Software patent

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A software patent is desired a patent, the protection for one or several computer programs, either immediately as a claim or indirectly as the essential means which is determined for the use of the claimed product or procedure. The concept Software patent is widespread not only among opponents of the patenting of computer programs. As counterconcepts computer-implemented invention and computer-aided invention were suggested within the scope of the consultations to a European directive about the patentability of computer-implemented inventions [1]. An in general accepted exact definition of the concept has not set up yet.

Introduction [Work on | Source text work on]

Traditional patents refer to technical inventions, that is on the problem solutions whose validity must be checked in experiments with natural forces. However, software patents refer to ideas only whose effectiveness can be proved by logical conclusions. Borderline cases are processes with which the traditional control is substituted under use of mechanics, hydraulics, pneumatics or electronics with a control with a computer program.

There is no juridical definition of the concept Software patent. Software patents are understood by some authors as a draught protection, e.g., "use of the patent right for the realisation of a conceptual protection of programmes for data-processing systems“ (shoot table). Others see an "idea protection" for software in software patents. Critics like Richard Stallman also speak of software-idea patents. It must be stressed that the differentiation is artificial between software draughts or ideas and software as such for developers if the main focus on the program-technical conversion lies. In spite of the conceptual idea software can be understood like mathematics as an aggregation of abstract draughts.

After German and European practise a computer-implemented invention is able of patent when it delivers a technical contribution.

It will often represent the "literature theory" to overcome the communication barrier:

Therefore, it would be stored with software very alike like with literary works. Not the action is from interest in the author, the narrative action cannot be also separated clearly by the story on which only it depends is rather his happy literary conversion. Hence, the patenting of software is felt by the IT professional ones similarly absurdly like the patenting of a narrative action. And just as the patentability of a story would be given if patents for actions are awarded, it is also with the patentability with software the case if patents for abstractions (draughts or ideas) are awarded in software. It is understood generally in such a way that a patent for a basic abstraction refers And the protection of the abstractions prevents moving the concrete. To make clear this, the concept Software-idea patent is also used by critics.

For the realisation of a draught protection, thus he is necessary then, is looked the patent right by many practical people as inexpedient.

Software patents are classed in no country officially as those what complicates the construction of statistics about her spreading.

Juridical situation [Work on | Source text work on]

The possibilities for the patenting of software are regulated internationally very differently. Basically software is protected worldwide also by the copyright / copyright. The copyright protects a concrete implementing, the procedure in itself which forms the basis of a programme, but only very much restrictedly. [2] It is possible to move the same idea in another programme without offending against the copyright. It is debatable whether such a protective interest is entitled and whether patent right is the economically adequate instrument for the accepted protective gap.

Historical development [Work on | Source text work on]

How proprietary protection is to be formed in computer programs, was not regulated long. Ada Lovelaces the first programme to the calculation of Bernoulli figures with Charles Babbages Analytical engine is valid as a mathematical masterpiece. [3] Babbage despised patents and it refused to patent some of his numerous inventions. At that time [4] The conversation with Babbage already showed that the programming of mathematical algorithms requires many technical considerations. However, the patenting of the Bernoulli figure programme probably never stood to the debate.

However, Konrad Zuse submitted on the 9th of April, 1936 his patent application Z 23  139 IX / 42 m for a „procedure for the automatic realisation of calculations with the help of calculating machines“ as an abstract operating procedure of his Z1, however, [5] he dropped on the 4th of November, 1937. Probably the first software patent application with functional patent claim for a really existing machine. According to the demands of the Patent Office Zuse disclosed  the whole structure and algorithms of the machine Z3 in the following patent application Z 26 476 from the 16th of July, 1941 for the first time what enables to the today's expert to take everybody from essential qualities. [6]

France codifies on the 2nd of January, 1968 in Loi n°68-1 Article 7 for the first time the exclusion of "programmes ou séries d'instructions pour le déroulement des opérations d'une machine calculatrice" (computer programs) from the concept of the industrial inventions. At the same time this patenting exclusion was established in the US-American exam directives for patent applications, [7], nevertheless, subsequently by God's rogue V. Benson [8] concerning §101 of the US-patent law of 1952 again qualifies.

IBM decided to themselves to decouple software and with it linked services of the hardware leasing contracts in 1969 under the pressure of the running cartel legal procedures and to plan for software originator's legal protection in connection with licence agreements instead of patent protection. [9]

Arrangements about trade-related aspects of the rights of the intellectual property [Work on | Source text work on]

There are two different interpretations of the arrangement about trade-related aspects of the rights of the intellectual property (TRIP) of advocates and opponents of a software patenting.

  1. TRIPS prohibits software patents: Critics refer to the fact that patent rights foreign to traffic affect the copyright utilisation unreasonably. [10] with reference to the article 10 of the TRIP and the article 4 of the WIPO-copyright contract (WCT) is questioned furthermore whether a patent juridical protection may fill a vorgebliche protective gap of the copyright.
  2. TRIPS demands software patents: Another legal opinion stresses against it, articles 10 TRIPS and articles 4 WCT refer alone to the copyright. However, the patent juridical article 27 TRIPS contains the minimum requirement that a patent must be granted, as soon as there is an invention in any technical area which is applicable anew, not obviously and commercially and with the granting and exercise may not be discriminated by patents after technical area. The EU software-copyright directive mentions that this directive which clarifies that software becomes protected by copyright does not exclude a patent juridical protection.

Both argumentation lines are extreme positions which are held by the respective opposition for a little serious, because many hold double protection by copyright and patent right for possible [11] and other TRIPS 27 only for applicable if software is to be understood as an „area of the technology“ in the patent juridical sense. Further the invention concept is to be cleared. To derive a legislative compulsion to the software patenting from TRIPS 27, is extremely questionable. In other areas the formulation was used by TRIPS 27, however, successfully in the lobbyist's broad context.

THE USA [Work on | Source text work on]

Since a decision of the Supreme Court of 1980 (slide moon versus Diehr) a patenting of software is possible in the USA, at that time this still had to have a narrow relation to industrial processes what was made soft, however, in 1994 from the US PTO, to the Patent Office of the USA. In 1999 the federal court of appeal with the decision has expanded State Street bank the patentability on business ideas. At that time the senate did not deal with the topic, propulsions of this development were excluding patent attorneys or their principal in combination with the US-American tradition, right on the basis of previous judicial rulings fortzuentwickeln.

With the decision Alice Corp. V. The Supreme Court clarified bank CLS of Int'l [12] of 2014 that ideas are not patentable. Only technical conversions of ideas are patentable.

Europe [Work on | Source text work on]

Since the European patent arrangement (EPÜ) of the 1973 upon which bit by bit the national law of the signatory's states leans the material patent right within the member states of the EU and other states is regulated uniformly. Article 52 of the EPÜ [13] contains an enumeration of objects not capable of patent which are not looked as inventions ("fiction"); under it also „plans, rules and procedures for mental activities“ as well as „programmes for data-processing systems“.

„Programmes for data-processing systems“ are excluded according to the article 52 (2) EPÜ from the patenting and are not subjected to the concept of the invention. From the qualifying formulation of 52 (3) on in 52 (2) called objects and activities as those, the view derives the EPO, only software as those would be excluded from the patenting. This interpretation is argumentative, because in particular the concept software exactly is not defined as those and is to be interpreted the kind 52 (3) in the harmony with the other called case groups.

As such clause in kind 52 (3) was anew laid out in the beginning of the 1990s from that point of view that the exclusion refers only to software as those, but not to basic draughts. An announced invention may contain a computer program, but the object of the invention must deliver a so-called technical contribution. The technical contribution is an uncertain legal concept by the administration of justice is to be filled. However, novelty and inventive activity must not lie compelling beyond the programme, that is a new and inventive algorithm which steers, for example, a robot in innovative manner is patentable. However, article 28 of the Polish patent law renounces in spite of entry to the EPÜ explicitly unclear as such clause. Also article 6 of the Turkish patent law (PDF; 737 KB) renounces explicitly on as such clause concerning computer programs.

Till the middle of the eighties the European Patent Office (EPA) laid out the arrangement restrictive and granted no patents for pure software inventions. In 1985 the EPA reworked his exam directives and explained that only "non-technical" innovations are excluded from a patenting. The definition this Technizitätskriteriums is argumentative till this day. Subsequently the patenting of software also became possible. However, only the EPO decision IBM/COMPUTER PROGRAM PRODUCT led to a rapid increase of the patents. The complaint chamber EPO anticipated with it an EPÜ check expected for 2000 which was expressly rejected, however, at last within the scope of a diplomatic conference. The opponents of this development number the number of the software patents granted since that time by the EPA on more than 30,000. [14]

The European Patent Office orients his practise in the administration of justice of his complaint chambers. The members of these chambers are equipped with judicial independence: They are bound according to the article 23 for her decisions not to instructions and are subjected only to the European patent arrangement. A granting practise in the „harmony with the decisions more nationwide of European Höchstgerichte“ is not planned in the European patent arrangement.

A substantially more restrictive course becomes recently apparent with the EPA again. In the cases concluded in 2005, 1,200 lasted patents stand in the way in the area of the software 350 of rejected ones. In the prevailing number of the cases, nearly 6,000, were taken back the registration after the search or in the examination procedure by the Anmelder. After a several years' moratorium the exclusions occur increasingly again in harmony with the decisions more nationwide of European Höchstgerichte on account of the exclusion of the patentability in kind 52 (2) (c) EPÜ.

In a decision [15] the judges analyse the different methodical criteria which are applied in the patent check by software patents with the EPA and stimulate an inquiry to the big complaint chamber of the EPA, so that a uniform administration of justice originates.

In October, 2008 the president of the European Patent Office of the big complaint chamber presented four questions concerning the patentability of software. On this occasion, the nonuniform administration of justice of the complaint chambers becomes concerning the assessment of computer-implemented inventions for the purposes of the article. 52 (2) EPÜ taken up. The big complaint chamber has confirmed the practise of the European Patent Office in the essentials. The decisions nonuniform at first sight would be based on an advancement of the right which must not always occur straight. Because the big complaint chamber could ascertain, hence, no colliding complaint chamber decisions, it has denied the juridical conditions of the presentation and has rejected as inadmissible. [16]

The European Union [Work on | Source text work on]

In the beginning of 2002 the European Commission hit a new EC directive for „computer-implemented inventions“ before with the aim of a harmonisation of the clever division practise in the member countries. The proposal lined up in the argumentative granting practise of the EPA. On the 6th of July, 2005 were right by the big (95-percent) majority 648 of 680 representatives against the directive to the patentability „of computer-implemented inventions“.

The EPA sticks furthermore to the doctrine of his technical complaint chamber and defends them actively. Since possibly June, 2005 it pursues a web campaign for CIE [17] and publishes in addition a pamphlet.

Germany [Work on | Source text work on]

The German patent law (PatG) is identical in all essential points with the European right, in particular with regard to the questions what is patentable.

More still: European patents can be complained at the end of the time for appeal only before national courts for the concerning country trifling and also in the case of a patent infringement the national courts decide. The administration of justice makes – just because of the identity of the legal regulations – by her decisions between German and European patents no difference. The last authority for German and European patents is the Federal Court of Justice in Germany.

The exclusions called in the EPÜ by the patentability, [18] in particular for registrations the computer programs as those concern, find themselves , e.g., in §1 of the German patent law. The Technizität of an invention – the condition for a patenting – is marked after German administration of justice by the fact that the invention helps itself for the reaching of a causally overlookable success of the application of natural forces. After now probably as a constantly typical administration of justice of the Bundespatentgerichtes and the Federal Court of Justice the merely designated use of a computer is no application of electricity as a natural force. In borderline cases, how with methods of the pressure way optimisation or of the memory management it still came to the argumentative interpretations after which, for example, a reduction of the memory consumption already produces Technizität.

Indeed, the question of the Technizität of the patented object plays – on account of this technical nature is – in connection with software patents only one minor part. Software is probably technical always anyhow and able of patent in this respect. [19] it is vital that the invention is technical and makes a technical contribution, i.e. a concrete technical problem with concrete technical means solves and the solution is also new and does not arise in obvious manner from a standing position of the technology.

In addition a few examples:

A passenger car-engine control, e.g., to the definition of the ignition time, is a technical device and  is accessible – as a device or as a procedure – also to the patent protection. In the old VW BEETLE there was for it a "low-pressure tin" with which about a tube to the carburettor the subpressure moved there a membrane for their part about a mechanism the ignition time with higher speed (= stronger subpressure in the carburettor) brought forward.

Today one has an electronic ignition; the speed and a lot of other in the engine is measured electronically, and a computer or a microprocessor is so programmed that he releases the ignition spark according to the measuring values at the right time.

Now for the example there is a technical idea to save fuel by a little bit other definition of the ignition time. Earlier another low-pressure tin which has exactly the desired effect was constructed for it. Today one changes for it the software. In both cases the same technical problem (petrol will save) with the same means (better ignition time) relaxedly. Such an invention is still able of patent, even if it is realised today by software. The software production „as those“ ( e.g., according to IEC 61131-3) is looked from patent juridical view as banal / trivial which can found only "property rights" after copyright graduations. The creative or inventive activity from patent juridical view lies exclusively beyond the program development.

Moreover in the contrast software for discovering of passages in the Bible, for astrological predictions or to the search of write errors and typing mistakes [20] solves no anyhow disposed technical problem and realises, hence, also no invention. She is not accessible to the patent protection.

Where the exact border runs, i.e. when an invention opening for the additional patent protection is given, separates according to the Federal Supreme Court in the question whether a technical problem can be named which is solved by the invention. Moreover a noteworthy Federal Supreme Court decision concerned a medical device (Kernspintomografen) by which the software from the company data determined the extent of utilisation of the device. Then according to these data it was indicated the operator and was reckoned up whether the acquisition of a new device or even a second device is more favorable under economic points of view and also wear, repair costs to be expected and maintenance costs and more were considered. It concerns here a technical device, technical data were grasped and (were evaluated by means of software), not differently than by the engine control. With knobs on: the problem which was solved with the putative invention was not more technical, but economic nature, because it goes exclusively around the decision whether a spare device or a second device is to be purchased or not. Hence, the Federal Supreme Court has found out that such a thing no invention is, and he has refused the granting of the patent. [21]

In exactly this connection the regulation is to be seen that „software as those“ is not able of patent: It is not enough that software is given which is certainly technical for itself: She must also solve „a technical problem with technical means“, [22] with it a patent can be granted.

According to a judgment [23] of the X Federal Supreme Court senate an apprenticeship may be patented to the data processing „as a computer program or in an other manifestation“ if she distinguishes herself „by a peculiarity which justifies a patentability taking into account the objective of patent juridical protection.“ Contradicting the I Federal Supreme Court senate decided, [24] that the copyright law for works of the literature (weekly magazine "Focus") „the competence flowing from the copyright and restrictions basically finally“ regulates. TRIP article. 10 paragraphs 1 and word by word WIPO-copyright contract article. 4 guarantee for originators of computer programs internationally the same protection like the originators of works of the literature, normal evaluation of her works after TRIP article. 13 and WIPO-copyright contract article. 10 may be neither affected, nor the legitimate interests of the entitled person unreasonably be injured. Accordingly of these international agreements one has decided in the European Union with the directive 91 / 250 / EEC of the advice from the 14th of May, 1991 about the legal protection of computer programs on the copyright protection of software. The directive was anew codified as a directive in 2009 / 24 / the EC from the 23rd of April, 2009. Kind.i The duplication, spreading and re-writing of a computer program as exclusive utilisation rights assigns 4 of the directive to the originator. The directive is moved in Germany by §69 C UrhG. The utilisation rights enable to the originator to achieve UrhG) in the computer program yields by the grant of rights of use (§31. In the protective area of a patent the patentee is entitled only to use the invention (§9, p. 1 PatG). To use freely the possibility of the author, his computer program by the grant of rights of use, hence, it is limited if the computer program is grasped by the protective area of a patent. [25] to the purification of the contradictory decisions of the Federal Court of Justice the big senate was not called for civil things in the Federal Supreme Court up to now yet and also the failed directive for the protection of computer-implemented inventions could not clear this norm conflict.

Who deals in Germany (commercially) with technical circumstances,  must pay attention – how always – to the fact that he uses, besides, no foreign, patented invention, i.e. that he injures no patent, and this is also valid if he provides "only" software. Who uses, nevertheless, software beyond the technology – which does not serve to make natural forces controllable – must deal, nevertheless, with the patent right, until the borders of the patentability more specifically are defined by legislative or juridical side. Because these borders were worked out, however, only recently more clearly, still one or other patent will absolutely be in strength which does not correspond to this basic idea. Such a patent can be complained with big view of success trifling, provided that the patentee dares generally to use it and to caution somebody because of patent infringement, as an unjustified protective right warning [26] can become expensive.

With the help of the first example (engine control) can also become clear, why this situation is dissatisfactory for inventors or Patentanmelder:

The patent right is a commercial protective right, i.e. a private individual cannot injure a patent. Who wants to save petrol by the changed ignition time with his car, that had to buy earlier a new low-pressure tin. Today he needs only one new software. He can download this to himself under circumstances even from the Internet, exactly as he was allowed to do earlier himself the low-pressure tin zusammenbasteln to himself without paying royalties. However, this does not go if the software stands even under originator's legal protection. Even if playing in of software with which an invention is realised is maybe still difficult with the passenger car today: In many other areas it is very easy, and the trend that more and more inventions can be installed by end user privately is absolutely foreseeable. Hence, it is feared that the patentee comes away empty-handed in more and more cases, particularly as if that who is occupied with the spreading of software "uses" just a little the invention (and, hence, also not because of patent infringement can be sued) like somebody who sells a book about this invention.

On the other hand, it is not conceivable par excellence that every programmer or the enterprise for which he programs arranges a search to the state of the technology with every program step which is connected regularly with considerable costs. However, [27] this would be necessary to be able to be sure, not to injure software patents of third. [28]

State of the debate [Work on | Source text work on]

Protection against blockade [Work on | Source text work on]

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Software patents are more argumentative around something than patents generally. Advocates argue that software patents absolutely have an economic use, because they give a monopoly on time for the utilisation and conversion of his "idea" to the "inventor". However, it is criticised that the long term shows a big restriction just with software patents.

Besides, with solution proposals to regulate "software patents" separately becomes easily about this – absolutely entitled – aim fired out. Presumably it requires in view of inventions which are realizable with software, no other specifications what is able of patent. More exact definitions would be more importantly, when in the life cycle of software the fact of the matter of a patent infringement, so of a use of the invention can be fulfilled and when not. [29]

Concept confusion [Work on | Source text work on]

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Now and then there is with opponents of software patents again the attempt [30][31]to substitute for the word "Software patent" with "software idea patent" to make clear that narrow claims to single works are not meant with all individual signs. Nevertheless, this leads again to other misunderstandings, for example, to questionable differentiations between "idea patent", [30] "patents of utilisation", "conversion patent" etc. Other concepts used about 2000 were ePatent [32] and logic patent. [33]

Industrial utilisation [Work on | Source text work on]

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By advocates of the software patents it is argued, also inventions in the software area required research and investments. These should be protected what happens in the industrial area by patents.

As an example the enterprise of Xerox is stated which should not have had a lot from the idea of the graphic surface, because this idea was taken up immediately by other manufacturers (for example, Apple) and these earned with it money.

According to the advocates would have each which uses a graphic user interface or publishes programmes for it, during 20 years licence costs to Xerox must pay. Besides, would have determined alone Xerox the rules and Xerox could also have decided arbitrarily to impose bans.

To the software patent opponents just this example is a document for how a bigger overall economic use originates from free competition of many developers than it is possible with the innovation control by a single enterprise.

Competition situation [Work on | Source text work on]

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In Europe it is further argued that European enterprises would have competitive disadvantages, because the majority of the software patents could be already registered by Japanese or US enterprises in own country. Also there are in the EU already more than 30,000 software patents which come to the large part from these countries. [34] Against it is the expenditure for European enterprises to announce abroad patents, far higher. Hence, it is to be expected that European enterprises profit all together in least from a patentability of software.

Per [Work on | Source text work on]

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EVP-delegated Joachim Wuermeling expelled Eolas versus Microsoft[35] [36]as an example of a Mittelständlers successful by software patents in the case.

As a better example the case Kodak versus Sun Microsystems[37] could serve. To the photo specialist Kodak at least even 90 million US dollars were paid by initial demand for compensation at the rate of one milliard US dollars. This is noteworthy in this respect, as that Kodak is not to be looked as an IT enterprise and had the concerning patents bought (and not developed).

Former German Federal Minister of Justice Brigitta Zypri (SPD) points during an interview to it, [38] are unjustified that many fears of small and middle-class software enterprisers, because honesty protects against patent infringements: „Basically is valid sometimes: If he does not decline [of the programmers], the danger is very low that he injures foreign rights. To make sure, gibts the possibility free by the way, to investigate in the data banks of the Patent Office according to the state of the technology.[39] however, critics argue, such statements testified from lacking skill of the minister, because one could injure very well patents as a programmer in case of the patenting of ideas, even if no line program code is copied or is copied and the present copyright already forbids exactly this case of the pure Kopierens. Besides a comprehensive search is very time-intensive in patent data banks and is cost-intensive and is nearly impossible in practice at least for freelances and small enterprises.

The advocates of software patents refer to the more than 100-year-old continuance of the patent system in the area of technical innovations. This is defined by the advocates as a success, although there is no alternative system as a comparison. Also small and small and medium-sized companies could prevent by a patent protection of her products over and over again that financially strong groups market a copy of the products as long as for lower prices, until the enterprise of the inventor cannot keep up financially with the predatory competition any more. Up to now in the opinion of the advocates there is no objective argument, why this success in the area of software will not enter.

The critics demand against it a proof of the need of software patents, at least, the software branch has developed in last decades very well without such patents. In addition, they question the technical character of software for the purposes of the patent being in general and argue that software is a purely spiritual work, pure logic. Also they fear that monopolists would bring themselves by Kreuzlizenzierung in an absolutely überlegene position which patents of smaller enterprises simply ignore, until these cannot raise the costs of an action for the penetration of her patents any more.

Against [Work on | Source text work on]

EU banana republic campaign against software patents

An often cited example for explaining of the Unsinnigkeit of software patents is that one did not patent any more „a certain mousetrap“, but every „means to the catch of rodents“ in the transferred sense. However, this example refers not to a specific problem of software patents, but makes clear that just patents for key technology prevent innovations in on it being based, often substantially more cost-intensive developments, or delay on years. [40]

When the patent right was introduced during the industrialisation, [41] the sense of patents lay in the fact that a financial investment – about one new factory building in which the new invention is produced as a sales product serially – is secured. The production of software – that is in principle storing away of programmes on data carrier which then are sold – partly, however, no risky investments.

Up to now studies one has not succeeded in proving a need or a positive effect on the national economy.

The critics of the software patents state that particularly for small and middle-size enterprise (KMUs) without strong financial background as well as independent programmers the possibilities of the economic activity would be extremely limited. [42] big enterprises can sue smaller because of patent infringements, and because – particularly in the USA – court procedures are expensive, the small enterprises add rather small, because the judges are very often no software experts and certificates about patent offence can be better financed by large-scale enterprise than by small enterprise. Then there is the danger that the judges from unawareness decide in favour of the large-scale enterprise.

Patent searches are very luxurious and expensive. [43][44], Nevertheless, even after a luxurious, long durable and uncertain Lizenzierungsprozess there is no guarantee not to offend against a patent, because software to be patented can be announced during several years by the Patent Office and is not known the public, before it is patented and is published (applies to the USA; so-called submarine patent). The costs of a patent process would lie, for example, in the USA with one to five million dollars (with extremely high quarrel values). If the quarrel value lay underneath, it would be better, in any case to agree extrajudicial. Besides, the patentees would have an extreme advantage, because clever Exklusionsrechte are and, hence, smaller enterprises who would have less access to the patent system, are strongly disadvantaged. By these ban rights would be able culprits who cannot afford in court to go, by the patentee are forced to all, because a possible debt saying is not to be survived in a court procedure economically.

There comes that searches could be very difficult after up to now granted patents. Thus it is possible to file patents under name which would meet about the real purpose and contents at first sight none or even a wrong statement. [45] a patent can be filed, for example, to the data compression under the title „new method of the management digitally of stored data“ – the search for "data compression" probably gives no useful hits. The fact that in the USA two enterprises – IBM[46] and Sperry corporation / UNISYS[47]two valid patents owned [48] for the same technology – the LZW compression used in GIF graphics – shows that the search is so difficult that sometimes also the Patent Office can lose the overview.

Many Stimmen[49] [50]fear also in the long term a distortion of competition in unfavours of the free software. Distortions of competition are just something what wants to prevent the EU.

From this formally would not be concerned the protection by software according to the originator's law. Nevertheless, really an expansion of the patentability in the area of software means a restriction of the copyright protection: [51]

  • Without software patents an originator has legal security about the fact that he can make with his self-written software what he wants, publish so, licence etc. [52]
  • With software patents the originator lacks legal security. Because software is complicated as a rule and (as a book would exist of many sentences) from many part algorithms, the likelyhood is already very big with small software projects that these could injure a patent. There is with software (differently than with books) no automated possibility to check, whether all used algorithms (whether all written sentences) in a list are included by patented algorithms (patented sentences). Thus it is not feasible, software in existing patents vorbeizuentwickeln, even if software can be written under avoidance of these patents what accelerates then the development admittedly.

Therefore the whole originator's legal protection which software enjoys is not strengthened with software patents practically, but is put on an unsafe basis. [53]

Not only economic points of view speak against software patents. The patent being assumes a technical contribution of the invention. [54] this technical contribution is difficult in connection with software to define and shows a quintessential point of the discussion. Software does not help itself clearly of defined natural forces, but only the representations of information. Software can be looked therefore detached by the device ( e.g., the description of an algorithm with pseudo code) and thus becomes difficult it in particular when from pure software the speech is which should not be expressly patentable, because software is always pure software. This contradiction is hardly to be solved and is not mostly considered on the part of the advocates. An example also is here the data compression. While they in a transmitter more or less make clear technical contribution performs, the same algorithm does not act in a data bank because bare administering of data is not of necessarily technical nature.

The fear also arises from these circumstances that software patents of the patentability of commercial methods open the door.

FFII & Linux association on-line demo (2005)

In Vienna and Munich there were in September, 2003 for this reason demonstrations before the Austrian one and the European Patent Office: About 300 and about 500 people protested against software patents. On the 15th of February, 2005 approx. 60 demonstrators protested before the federal Ministry of Justice in Berlin, two days later approx. 250 demonstrators moved from whole Europe by Brussels. In 2005 there was in addition a common campaign against software patents of among other things Attac, Campact, FFII and the Linux association. [55]

New Zealand [Work on | Source text work on]

In New Zealand it was suggested for the reworking of the patent law („of patent of Bill“) from 1953 by the economic committee in 2010 – for a conversion till the end of 2012 – taking up computer programs in the list of the inventions not capable of patent. [56]

Examples of software patents [Work on | Source text work on]

An example of up to now granted software patents is the progress beam which indicates the progress of a process (for example, while starting a computer or with the writing on a data carrier), this patent was valid during about eight years, to IBM it allowed to run out in 2003. [57] other examples are compression procedures, like the music compression format MP3 which falls back on knowledge of the psychoacoustics to attain a high compression. Besides, one renounces a part of the information which a person does not perceive anyway consciously. The Fraunhofer society and other enterprises own patents for part procedure from this. [58] GIF graphics use the patented Lempel Ziv what an algorithm (LZW) to the compression to reduce [59] around the data amounts. The last national LZW patent of the enterprise of Unisys has run out on the 7th of July, 2004 in Canada, however, IBM also held up to 11. August, 2006 a patent for the same procedure.

Also in the area of dispatch trade some procedures are patented. Thus the electronic shopping cart with whose help with many on-line traders orders are put together is a patented commercial method of the enterprise of Sun. [60] The "One click shopping" (a method around orders with only one mouse click to order) is patented by the on-line trader Amazon.com. (Moreover, EP 0 927 945 B1 [61]) Amazon owns a patent in the method of the sending of presents into three parts about a web shop. [62] against this patent have inserted the society for informatics (GI), the conveyor association for a free ulna of information infrastructure (FFII) and the flower sender Fleurop in 2004 objection.

Another example is the patenting of the identification of files on P2P networks by means of Hash values. However, the use of Hashfunktionen is usual already at least since the 1970s. The patent owns the enterprise Altnet in the USA. Furthermore the Microsoft Corporation holds the patent for the process of the double click [63] and on Instant Messaging[64] in the USA. In the end of 2008 the American enterprise of Cygnus system sued Apple, Microsoft as well as Google. The reason for the complaint exists in a software patent of the enterprise from 2001 which describes the preview of an image in a reduced miniature view. The described technology is used by the accused enterprises as well as other software enterprises extensively. [65] Also the enterprise worlds.com submitted Christmas 2008 a complaint because of patent infringement against the competitor NCsoft. This expels the on-line role play Guild Wars; the technology of the on-line role play could be patented worlds.com after many years' approaches in 2007. [66]

Some examples point in the opinion of the critics which outgrowths a patenting of software can accept which refers in the essentials to the automated realisation of a commercial method. In the USA a patenting of commercial methods is possible in contrast to Europe and Germany. With a patenting of software it is necessary therefore that the Patent Offices make a distinction whether it concerns software which delivers a contribution to the state of the technology which develops technical knowledge, or whether merely is tried to automate a commercial method. The administration of justice in Europe and Germany to the present patent system decides in contrast to the USA with the help of this criterion. Examples from the USA also often show that is patented by smaller enterprises consciously a little bit to sue then a bigger and putatively wealthier competitor who uses this technology. [67][68][69][70]

Although the granting of software patents offends against European right, the EPA has already granted 30,000 software patents according to estimates of the FFII. In addition also belong a whole series of debatable patents. The shopping basket, for example, was also protected by a European patent. [71] In particular to the European Patent Office is accused in this connection by software patent opponents Rechtsbruch. The EPA finances itself by the Registration one or registration and lengthening fees, which is why a freigiebige practise can lie in the short-term interest of the office.

Besides, there is also enterprise which themselves create no innovations, but the patent system only to the money drive are of use; these are called patent trolls or patent sharks. [72][73]

Trivial patents [Work on | Source text work on]

main article: Trivial patent

Many of the examples given by software patent opponents belong to the category of the so-called trivial patents which were taken up on account of defective check in the register, show in principle, however, no protective permanence. The famous progress beam patent is a typical example of such a trivial patent. Trivial patents exist in all areas of the patent being, not only in the area of the software patents. [74]

Although presumably many trivial patents would have no continuance with judicial discussions, they can get just financially strong enterprises an advantage in the competition with small and middle competitors. Even with clear legal situation such enterprises are not often in the situation to the defence of the unjustified complaint to necessary costs vorzufinanzieren.

Because, besides, no compensation duty of the clever assignment places exists for the damages on account of unjustified awarded patents, there is no system broad Selbstregulation who guarantees a thorough patent check.

See also [Work on | Source text work on]

Literature [Work on | Source text work on]

  • K. Blind, J. More nobly, M. Peace wood: Software of patent: Economic Impacts and Policy Implications. Edward Elgar, Cheltenham in 2005, ISBN 1-84542-488-3.
  • Gregory A. Stobbs: Software of patent. 2nd edition. Wolters Kluwer, in 2007, ISBN 978-0-7355-1499-7.

Web links [Work on | Source text work on]

 Wikinews: Software patents – in the news

Single proofs [Work on | Source text work on]

  1. Proposed directive on the patentability of computer implemented inventions in the English-speaking Wikipedia
  2. judgment of Cologne OLG from the 8th of April, 2005 file number 6 U 194/04: Authorship authorisation in computer programs: Limited protection of the "creator" of default for software Basic principle: Only he can hold rights after §69a UrhG who developed certain from himself or moves from the third side given settings of tasks in a computer program. The purely conceptual default - possibly in business and economic regard - is no "draught material" protected according to this regulation, even if they are essential for the production of a functional programme. They can claim at most after §2 paragraph 1 No. 1 and 7 UrhG protection and then lead to the coauthorship in the complete works.
  3. J. Fuegi, J. Francis: Lovelace & Babbage and the creation of the in 1843 ' of notes''. In: IEEE Annals of the History of Computing. Tape 25,  No. 4, 2003,  page 16-26, doi:10.1109 / MAHC.2003.1253887.
  4. Anthony Hyman: Charles Babbage: Pioneer of the computers. Princeton University Pressing, in 1985, ISBN 0-691-02377-8,  p. 124.
  5. Konrad Zuse: Patent applications. (zib.de [PDF; called away on the 2nd of June, 2009]).
  6. Raúl Rojas, Georg Alexander Thurm: The patent application Z391 of Konrad Zuse. (zib.de [PDF; called away on the 2nd of June, 2009]).
  7. C. Violinist, Reto M. Hilty: Breveter le logiciel? Une analysis juridique et socio-économique. In: Propriétés Intellectuelles. July, 2005,  p. 296-312 (irpi.ccip.fr [PDF; called away on the 22nd of May, 2009]).Fn.14 with reference to God's rogue USSC V. Benson, 409 US 63 1972.
  8. God's rogue V. Benson in the English-speaking Wikipedia
  9. L. Johnson: A view from the 1960see: how the software industry began. In: IEEE Annals of the History of Computing. Tape 20,  No. 1 (March), 1998,  S. 36-42, doi:10.1109/85.646207.
  10. Swen Kiesewetter-Köbinger, Pacta sunt servanda, JurPC Web-Dok., paragraph 135 and the following
  11. so , e.g.BPatG 17 W (pat) 69/98,
  12. Alice Corp. V. Bank CLS of Int'l 573 U. S. (2014)
  13. Article. 52 EPÜ
  14. Figures of the FFII
  15. Decision of the British Supreme Court (PDF; 236 KB)
  16. G3 / 08 (PDF; 128 KB)
  17. epo.org
  18. Exclusions of the patentability
  19. Federal Supreme Court Xa ZB 20/08: Dynamic document generation. 22nd of April, 2010 (bundesgerichtshof.de [called away on the 18th of May, 2010]).
  20. Federal Supreme Court search of faulty sign chains (PDF; 135 KB) (see also european patent office.org (PDF; 100 KB) with the following decision BPatG 17 W (pat) 69/98 from the 26th of March, 2002)
  21. Federal Supreme Court decision from the 19th of October, 2004 – X ZB 34/03 profitability inquiry (PDF; 34 KB)
  22. Federal Supreme Court electronic payments (PDF; 45 KB), Federal Supreme Court profitability inquiry (PDF; 34 KB), Federal Supreme Court offering of interactive help (PDF; 39 KB), Federal Supreme Court recording bearer (PDF; 87 KB), Federal Supreme Court prepaid telephone calls (PDF; 101 KB)
  23. Judgment search of faulty sign chains (PDF; 135 KB)
  24. Gies eagle (PDF; 1.1 MB)
  25. Rasmus Keller: Software-related patents and the constitutional-juridical property rights of the software authors from article. 14 Basic Laws. Sierke, in 2009, ISBN 978-3-86844-119-2,  p. 9 and 14    following (buchhandel.de [PDF; called away on the 10th of March, 2010]).
  26. unjustified protective right warning (PDF; 51 KB) with the Federal Court of Justice
  27. cf. Signo conveyor action of the BMWiT for KMU
  28. SIMSON L. GARFINKEL; M RICHARD. STALLMAN; MITCHELL KAPOR: Why of patent ares of bath for software. In: Issues in Science and Technology. In 1991 (progfree.org [called away on the 8th of March, 2010]).
    Bryan Pfaffenberger: Open source software and software of patent: A constitutional perspective. In: Knowledge, Technology & Policy. Tape 12,  No. 3. Jumper Netherlands, September, 1999,  page 94-112, doi:10.1007 / s12130-999-1029-x.
  29. pressebox.de
  30. a B Software and ideas patents in the European Union: Situation analysis and vote recommendation of the association for the support of free software (PDF)
  31. patinfo.ffii.org
  32. kosatschek.de (PDF)
  33. eupat.ffii.org
  34. compare in addition http://swpat AJQ0X.ffi / fi / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / /
  35. spiegel.de
  36. http://www .ftd.de/unternehmen/industrie/:eolas-vs-microsoft-patenthaie-auf-dem-vormarsch/50022977.html (Warning from the 15th of October, 2009 in Internet archives)
  37. Heise on-line
  38. pressebox.de
  39. Brigitta Zypries with heise.de (Warning from the 4th of June, 2004 in Internet archives) on the 28th of May, 2004.
  40. Network new media Inc.: Protest against decision of the EU council of ministers for software patents
  41. eupat.ffii.org
  42. heise.de
  43. prevalent.de (PDF)
  44. prevalent.de (PDF)
  45. Patent for data synchronisation / version management stored under the name Procedure for adapting of a data continuance indicated on a client-data processing equipment of a source data continuance stored on a server-data processing equipment
  46. Patent US4814746: (IBM Patent for data compression).
  47. Patent US4558302: (Sperry patent for quick data compression and data decompression).
  48. Comment to the expiry of the GIF/LZW patent
  49. Small inquiry to the Federal Government to software patents
  50. NoSoftwarePatents.com: Competitive lie
  51. Open Source yearbook 2004 - between software development and society model (PDF; 3.6 MB)
  52. ostc.de
  53. ostc.de
  54. BMJ: Patent law §1
  55. All Registered sites. In: demo.ffii.org / online_supporters. FFII. Archived by the original on the 10th of March, 2005. Called away on the 13th of February, 2014.
  56. Commerce Committee, House of Representatives: Of patent Bill. Government Bill. Ace reported from the Commerce Committee. 235-2nd Wellington 30th of March, 2010 (in English, on-line [PDF;  3.8 mb; called away on the 23rd of November, 2017]).In particular page 5.
  57. patent EP0394160.
  58. patent EP0287578.
  59. patent US4558302.
  60. patent EP0807891.
  61. patent EP0927945.
  62. Patent US6594644.
  63. golem.de
  64. golem.de
  65. macnews.de: US enterprise sues Google, Apple and Microsoft because of patent infringement
  66. maclife.de
  67. David Segal: Has patent, wanting Sue: In Alert to Corporate America. In: New York Times. 13th of July, 2013, called away on the 31st of January, 2017 (in English).
  68. Kathrin Werner: Fight to the trolls. In: SZ. 23rd of November, 2015, called away on the 31st of January, 2017.
  69. Lauren Cohen, Umit G. Gurun, Scott Duke Kominers: Patent of troll: Evidence from Targeted Firms. 21st of August, 2016, called away on the 31st of January, 2017 (in English).
  70. James Bessen: The Evidence Is In: Patent of troll Th Going whoring innovation. In: Harvard business Review. November, 2016 (in English, hbr.org [called away on the 31st of January, 2017]).
  71. Patented web shop EP 0 807 891 has went out since July, 2006 in all named states.
  72. Thomas fisherman: In the grey area. In: Time on-line. 24th of February, 2005, called away on the 23rd of November, 2017.
  73. Christian Kirsch: Study: Patent trolls destroy yearly milliards. In: Heise on-line. 14th of November, 2011, called away on the 23rd of November, 2017.
  74. gnu.org
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