(Mark: the ones original headlines incorrectly said "2010")
Germany's Federal High Court, the Federal Court of Justice, handed out a ruling that some say upholds a software clever. The ruling what published ace a PDF. I converted it to text here thus that we can use on-line translation of service to Read it in English. Below is the full text in German. Here ares on the left to automatic translations to English:
The swpat.org page about Germany contains background info and context.
FEDERAL COURT OF JUSTICE
X ZB 22/07
20th of January, 2009
in the appeal procedure
concerning the patent application 101 56 215.2-53
Reference book: yes
Control equipment for investigation modalities
PatG §1 paragraph 1, paragraph 3 No. 3, paragraph 4
In any case when the procedure helping a data-processing system is embedded in the expiry of a technical equipment (as for example with the setting of the definition of a Computertomografen), the result of a weighting of technical and non-technical elements does not decide on the patenting. It is authoritative rather whether the apprenticeship serves in case of the compulsory whole consideration of the solution of a concrete technical problem going out the data processing.
Federal Supreme Court, Beschl. v. 20th of January, 2009 – X ZB 22/07 – Bundespatentgericht
The X civil senate of the Federal Court of Justice has decided on the 20th of January, 2009 by the presiding judge Dr. Melulli as well as the judges crowds, Dr. Lemke, village Asen and Gröning:
On the appeal of the Anmelderin the decision of the 17th senate (Technical complaint senate) of the Bundespatentgerichts is lifted from the 17th of April, 2007.
The thing is referred back to the different-wide negotiations and decision to the Bundespatentgericht.
The value of the appeal procedure is settled on 25,000€.
1. I. A patent with the name “Procedure for the processing has submitted at the German patent office and brand office the Anmelderin medically of relevant data”; the office has rejected the registration. With the complaint has applied for the Anmelderin before the Bundespatentgericht – so far for the appeal procedure of interest – to grant the patent with a patent claim being as follows 1 which 14 other claims should join (2nd auxiliary application):
“Procedures for the processing medically of relevant data within the scope of an investigation to be carried out of a patient, dadurchgekennzeichnet that program means stored in a data processing equipment select investigation modalities to be carried out on the basis of given information specific for diagnosis and/or specific for symptom under use of a symptom-based and/or diagnosis-based data bank one or several to the investigation of the patient who are spent to a reproduction equipment and to a certain investigation modality one or several investigation protocols defining the investigation or measuring protocols are selected by the data bank and are spent and the investigation protocols or measuring protocols are used by the data processing equipment to a data processing and/or control equipment of a well-chosen investigation modality, to the investigation of the patient, be transferred, where they are returned if necessary when required and/or are used for the control of the investigation modality.”
2 The other auxiliary application 3 differs from preceding merely in the divergent version of the last half sentence of patent claim 1 which is:
“… where they are returned and are used for the control of the investigation modality.”
The complaint has rejected 3 The Bundespatentgericht. With the admitted appeal applies for the Anmelderin to lift this decision, as far as the registration with the patent claims from 1 to 15 has been rejected according to auxiliary application 2 or auxiliary application 3.
4 II. The appeal admissible by virtue of licensing allowed for the rest succeeds and leads to the Zurückverweisung of the thing to the Bundespatentgericht.
5 1. The Bundespatentgericht has represented the opinion, the registration has no invention lying in technical area i. S. from §1 PatG to the object. As far as it concerns the right choice by investigation modalities (e.g., x-ray examination, computer tomography, magnet resonance) and if necessary the suitable order of her use with a patient by program means at the risk of a symptom-based and/or diagnosis-based data bank, the announced procedure to the exclusion of the patent protection unterfalls after §1 paragraph 3 No. 3 PatG. No concrete technical problem formulation also forms the basis of the instruction that for every certain investigation modality one or several investigation protocols or measuring protocols should be selected and be spent. This instruction would be determined, like the choice of the investigation modalities, by the intention to automate made weighing mental decisions up to now from the doctor. The procedure is not patentable on account of this instruction.
The procedure shows 6 beside these non-technical points of view after claim 1 in the version of auxiliary application 2 however also technical points of view, namely, in any case, in this respect when by the program means in the data processing equipment are transferred to well-chosen protocols to the investigation modalities and there from case to case to the direct control of the investigation modality are used. Though this step serves the solution of a concrete technical problem formulation, gereiche of the registration, nevertheless, also not for the patent ability. The exclusion fact of the matter §1 does not take for the decision of the Federal Court of Justice “offering of interactive help” paragraph 3 and 4 PatG though already when a concrete technical problem forms the basis at least of one part of the apprenticeship. However, after other decisions a whole consideration is to be done about what is in the foreground after the claimed apprenticeship. This is the query process explained by the program means and decision-making process with the claimed procedure. If these and weighing mental points of view falling back on specialist knowledge were cancelled including expiries, aimed support of the doctor can be realised neither by the Anmelderin after the registration documents with the choice of the investigation modalities and investigation protocols, nor the setting of suitable device parametres in the modalities. The transference of the protocols to the data processing facilities of the investigation modalities is on the other hand a complementary measure of subordinated meaning. Hence, the procedure after the main claim in the version of the auxiliary application 2 is not able as an invention i. S. from §1 paragraph 1 PatG are recognised.
7 2. Against this judgement the appeal turns successfully. With the grounds given by the patent court the exclusion of the registration cannot be justified.
8 a) The object of the registration shows after the statements grieved by the patent court in the version of the auxiliary applications 2 and 3 for the patent ability of a computer program or an object dressed in procedure claims of the processing according to data processing of procedure steps necessary Technizität (§1 paragraph 1 PatG) if only for that because he serves the processing, storage and transmission of data by means of a technical device.
9 Something else "logic verification" (BGHZ 143, 255) arises for the position of the Bundespatentgerichts also not from the senate decision. The aim of the whole consideration appealed there (aaO, p. 262 following) is alone whether – what stands present except quarrel – the programme or procedure is embedded in a manner in a technical expiry which demonstrates the sign of the Technizität generally as full. However, from it does not arise how the patent court seems to believe that Technizität may be negated with a coexistence of technical and non-technical elements as a result of a weighting.
10 is Unimportant for the Technizitätserfordernis whether the object of a registration, as it is here the case after the grieved statements, also shows non-technical beside technical signs. The administration of justice being based on the so-called core theory for the demarcation not of the combinations capable of protection to which the patent court has appealed for his contrary beginning (sen. Urt. v. 11.3.1986 – X ZR 65/85, GRUR 1986, 531 – flight costs minimisation), has been given up with the decision "diving computer" from the 4th of February, 1992 (BGHZ 117, 144) (cf. Benkard/Bacher/Melullis, PatG, 10th ed., §1 PatG Rdn. 45B; coaches / Keukenschrijver, PatG, 6th ed. §1 Rdn. 34). Whether combinations from technical and non-technical or from the patent protection to impossible signs are able of patent in particular cases, paragraph hangs in this respect – apart from the possibly appropriate exclusion facts of the matter §1. 3 PatG – only of it from whether they are based on an inventive activity (cf. Benkard/Bacher/Melullis, aaO).
A registration which has a computer program or a procedure realised by software to the object, after which must contain 11 b) after the administration of justice of the senate for the patent ability indispensable Technizität the instructions decisive for procedure which have the solution of a concrete technical problem with technical means to the object. Because of the patenting exclusion of computer programs as such (§1 paragraph 3 No. 3 PatG) only such instructions are able to found regularly the patent ability of a procedure which has a problem solution with such means to the object. Not the application of a computer program, but the solution of such a problem with the help of a (programmed) computer can entail before the background of the patenting ban a patent ability. This entails that in the check of novelty and inventive activity this problem solution is to be taken in the look. Beyond the technology recumbent instructions are not enough in this connection basically; they matter only in the extent in which they have influence (sen on the solution of the technical problem with technical means., BGHZ 149, 68 – search of faulty sign chains; 159, 197 – electronic payments). Such an apprenticeship is able of protection rather only when the solution of the concrete technical problem is new and inventive.
12 , In any case, so far the procedure announced here after choice of investigation modality and investigation protocols or measuring protocols also the application of the respective investigation modality steers (for example, the setting of the definition with computer tomographies), it solves a technical problem concrete in this sense. The program controlled setting of such device parametres leads, to the place of the manual setting by the operating personal kicking, a technical success here, to an application program to the supervision and regulation of the expiry of a technical equipment (sen. Beschl. v. 13.05.1980 – X ZB 19/78 – anti-skid system) or for the processing of measuring results (sen., BGHZ 117, 144 – diving computer) is comparable (cf. to the protective ability of a X-ray equipment steered by an expiry programme in the achievement of optimum exposure with enough strain security of the X-ray tubes also EPA GRUR Int. IN 1988, 585).
13 3. The protective ability of the announced invention is here after all no question of the Technizität or the patenting exclusion, but the inventive activity which will have to check the Bundespatentgericht now. Besides, could be also to be come on the not treated question up to now whether the registration after the external-technical processes of the collection, Vomiting cherung, evaluation and use of data reveals a technical apprenticeship accessible to the patent protection and for their conversion, if this should be the case whether location required the development of inventive activity, or whether this conversion to the specialist knowledge of the user leave remains.
The senate has not judged 14 verbal negotiations for necessary.
Melullis crowds Lemke
Village Asen Gröning
Bundespatentgericht, decision from the 17.04.2007 – 17 W (pat) 6/04 –