The below is the text, and on the left to machine translations to English, of a recent German court ruling that seems to uphold software of patent.
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- Analysis by Florian Müller: German high court declares all software potentially patentable
- from en.swpat.org/wiki:
FEDERAL COURT OF JUSTICE
Xa ZB 20/08
22nd of April, 2010
in the appeal thing
concerning the patent application DE 102 32 674.6-53
Reference book: yes
Dynamic document generation
PatG §1 paragraph 1, paragraph 3 No. 3, paragraph 4
a) A procedure, the immediate cooperation of the elements of a data processing system (here: of a server with a client concerns to the dynamic generation of structured documents), is always of technical nature, without it would depend on whether it is marked in the arrangement in which it is applied for a patent by technical instructions.
b) Such a procedure is not excluded as a programme for data-processing systems from the patent protection if it solves a concrete technical problem with technical means. A solution with technical means is given not only when system components are modified or are addressed in new manner. It is sufficient rather, if the expiry of a data processing programme which is used for the solution of the problem, is determined by technical circumstances beyond the data-processing system or if the solution just consists in decorating a data processing programme in such a way that it shows consideration for the technical circumstances of the data-processing system.
Federal Supreme Court, decision from the 22nd of April, 2010 – Xa ZB 20/08 – Bundespatentgericht
The Xa-civil senate of the Federal Court of Justice has decided on the 22nd of April, 2010 by the judges Prof. Dr. Meier's baker and Keukenschrijver, judge Mühlen and the judges Dr. Bacher and Hoffmann:
On the appeal of the Anmelderin the decision of the 17th senate (Technical complaint senate) of the Bundespatentgerichts is lifted from the 17th of January, 2008.
The thing is referred back to different-wide negotiations and decision, also above the costs of the appeal, to the Bundespatentgericht.
The value of the object of the appeal procedure is settled on 25,000 EUR.
I. The German patent office and brand office has rejected ten patent claims comprehensive, in 2002 submitted patent application 102 32 674 with the name “Procedure to the dynamic generation of structured documents” because of absence of inventive activity. Against this the complaint has inserted the Anmelderin with which she has followed up patent claim 1 the in the following returned, changed version and the patent claims from 2 to 9 consistently, but in back respect on the changed patent claim 1:
“1st procedure to the dynamic generation of structured documents (SD) in at least to one with a client (CENTILITRE) to communicating, in his resources limited, microcontroller-based leading calculator (SRV), extensively the steps:
Receipt of requirement data (REQ) of the client (CENTILITRE) in the leading calculator (SRV),
Extraction of inquiry parametres from the requirement data (REQ),
Picture of the inquiry parametres by a controlling module (CRT) on an instruction set of a softwarearchitekturspezifischen interface module (IF) of the leading calculator (SRV),
dynamic generation of the structured document (SD) under use at least of one presentation document (TD) with contained calls of employees (JB) and instructions of the employee (JB) are extracted by the interface module (IF) and are illustrated on a corresponding, on a cutting of the employees limited instruction set of the interface module (IF),
which are explained under Hinzuziehung of the illustrated inquiry parametres in term surroundings of the controlling module (CRT) and define after occurred implementation contents and/or structure of the structured document (SD),
Transmission of the dynamically generated structured document (SD) to the client (CENTILITRE).”
Patent claim 10 has followed up them in the following version:
“10th system for the realisation of the procedure after one of the preceding claims.”
The patent court has rejected the complaint; his decision is published in CR in 2008, 626. It has admitted the appeal.
II. The appeal is admissible by virtue of licensing and is inserted efficiently. In the thing she leads to the abolition of the contested decision and to the Zurückverweisung of the thing to the patent court (§108 paragraph 1 PatG).
1. The patent application underlying to the appeal concerns after her patent claim 1 a procedure to the dynamic generation of structured documents,
- (1) In at least one microcontroller-based leading calculator
it is carried out,
- (1.1) In his resources is limited and
- (1.2) Communicates with a client,
- (2) With the following procedure steps:
- (2.1) Requirement data of the client will conceive in the leading calculator,
- (2.2) From the requirement data inquiry parametres are extracted,
- (2.3) The inquiry parametres are illustrated by a controlling module on an instruction set of an interface module of the leading calculator,
- And the interface module softwarearchitekturspezifisch is,
- (2.4) The structured document is dynamically generated
- (2.4.1) under use at least of one presentation document with contained calls of employees,
- (2.5) Besides, instructions of the employees are extracted by the interface module and are illustrated on a corresponding instruction set of the interface module,
- And the instruction set is limited to a cutting of the employees,
- (2.6) The instructions
- (2.6.1) are explained under Hinzuziehung of the illustrated inquiry parametres in term surroundings of the controlling module and
- (2.6.2) define after occurred implementation contents and/or structure of the structured document,
- (2.7) The dynamically generated structured document is transmitted to the client.
2. The patent court has explained, with the registration a procedure should be given which allows a generation of structured documents with dynamic contents and/or dynamic structure and a Portierung of the presentation documents should be possible between resource-restricted leading calculators or servers and leading calculators with enough resources in an easy manner. It should be created consequently a possibility, structured documents (i.e. the documents which also contained calculator-readable instructions about structure and representation beside the information to be shown, as documents are written in the HTML format) from presentation documents, which in Script-or scriptähnlichen language like Java server Pages to generate dynamically also on such leading calculators whose too low efficiency does not admit the installation of entire Scriptsprachen-term surroundings.
For the solution of this problem teaches patent claim 1 that the leading calculator (server) from the requirement data extracts the inquiry parametres for a document and illustrates this by a controlling module on the instruction set of the leading calculator. By the picture is to be understood that the parametres would be moved in for the interface module of the leading calculator understandable orders or would be also ignored. With the (remaining) requirement data it is accessed in the leading calculator a suitable presentation document with in this contained call of employees. The instructions contained by the employees should be also illustrated extracted, on limited spezi fish instruction set of the interface module of the leading calculator and under Hinzuziehung of the illustrated inquiry parametres in the term surroundings of the controlling module, i.e. without insertion of entire Scriptsprachen-term surroundings, be explained. In this manner the requested document can be dynamically generated and be transmitted to the client, without on the leading calculator complicated, comprehensive term surroundings must be installed for a Scriptsprache like "Java Virtual Machine".
This revealed – workable – procedure after patent claim 1 does not lie in technical area. The apprenticeship of the quarrel patent passes to make written documents on a leading calculator of low efficiency thereby processable in a Scriptsprache that a limited cutting is moved by instructions of the Scriptsprache without Scriptsprachen-term surroundings directly in the instruction set of the interface module of the leading calculator. Though this concerns no concrete result by working steps which are determined for the implementation by a data-processing system, but, hence, the basic draught for the generation of dynamic documents and would not be excluded probably as a programme for a data-processing system “as such” from the patent protection. However, a procedure which helps itself to the causation of the aimed success of a programme is accessible after the administration of justice of the Federal Court of Justice not already because of the electronic data processing to the patent protection; the claimed apprenticeship must contain rather instructions which served the solution of a concrete technical problem with technical means. Though the claimed apprenticeship of the solution of a (basically) technical problem may serve, as far as she tries to compensate for the different efficiency of leading calculators by a certain manner of the production of documents. However, this is caused not by the application of technical means, but is based on conceptual considerations. The besides presumed application of data processing means does not lead after höchstrichterlicher administration of justice yet to the fact that the apprenticeship to the patent protection is accessible. To reach to the proposal of the patent application, no concrete technical knowledge is also necessary after customary technology understanding, because a certain internal approach of the leading calculator is accepted as given.
Concerning the patent claim 10 no other assessment arises. With this claim which refers to the procedure signs stresses the Anmelderin merely the concrete character for the implementation of the procedure of used data processing system, concrete signs, nevertheless, already of the apprenticeship of the patent claim 1 puts under have become.
3. The appeal asserts, computers and their programming belonged to the area of the technology. The negation of the Technizität of computer programs is a fiction not covered by the reality. Article. 27 paragraphs 1 of the trip arrangement orders the granting of patents for inventions in all areas of the technology. The exclusion intended in the patent law for “computer programs as those” is able only with article. 27 of the trip arrangement are compatible if under it a non-technical object is to be understood. Because computer programs are technical, however, by Se, a contradiction can be avoided to the trip arrangement only if there were non-technical “computer programs as those”. To him stands in the way meanwhile that computer programs are technical after the reason. A way out can be found only if a "double character" with technical and non-technical qualities is awarded all computer programs. The technical qualities are to be seen here in the control of the computer like in all other technical effects which would be caused by program controlled computers by the implementation of the programmes, non-technical in the textual aspects. The present administration of justice of the Federal Court of Justice has not grasped two kinds of obviously technical instructions for the computer control, namely the computer-compatible instructions which solved though a technical problem the patent claim, however, did not stamp, as well as computer-compatible instructions which are stamping for the patent claim, but no technical problem solved.
4. Of the apprenticeship for which the patent application claims protection an invention for the purposes of §1 concerns paragraph 1 PatG (in since the version to be applied 13.12.2007) and paragraph 3 No. 3 PatG is not excluded after §1 from the patent protection.
a) The apprenticeship for which the Anmelderin protection claim concerns the immediate cooperation of several elements of a data-processing system, namely – for example, by limited main memory capacity (Beschr. Paragraph 6, 7) – in his efficiency of limited leading calculator (server; SRV) which shows an interface module (interface, IF), sends with a client (CENTILITRE), which demands for the leading calculator and receives from the leading calculator anforderungsgemäß dynamically generated structured documents. With it 10 claimed "systems" from leading calculator and client a total of one (complicated) data-processing system shows in patent claim 1 presumed and with patent claim whose effectiveness can be affected by the limited resources of the leading calculator.
The problem underlying to the registration (cf. Beschr arises from this interference. To provide paragraph 16), a procedure which enables to generate one structured document requested by the client also on leading calculators with limited resources dynamically (and to transmit the so generated document then to the client).
In addition inquiry parametres are extracted from the requirement data received by the client (sign 2.2) and by a "controlling module" of the server on an instruction set of a softwarearchitekturspezifischen interface module illustrated (signs 2.3, 2.3.1). Under is as the description explains (paragraph 18) to understand that substitutes for the requirement parametres with orders understandable for the interface module – or also ignored – become. Under use at least of one presentation document a structured document corresponding to the requirement data is generated then (sign 2.4). The presentation document contains one or several employees (sign 2.4.1), i.e. dynamic calls of objects or Java components ("Java Beans") which are integrated together with static components as for example to HTML expressions into a common document which shows, for example, the structure of a Java-server side (Java server Pages). The instructions contained in the presentation document can be processed by means of term surroundings installed on the leading calculator – in the case by Java server Pages the so-called Servlet engine to the conversion of the server sides and so-called Java Virtual Machine (JVM) for the implementation of the Java code–. On this occasion, originates a dynamically generated structured document, for example, a HTML document with the requested contents which is transmitted to the client (cf. Beschr. Paragraph 12 to 2). After the apprenticeship of the patent application the instructions of the employee ("Java Beans") are extracted by an interface module available on the leading calculator, limited to a corresponding – (sign 2.5.1) – instruction set illustrated (sign 2.5) and in term surroundings of the controlling module also arranged on a leading calculator explained (sign 2.6.1). The picture can be formed, as the description explains, very much simplisticly, while she limits herself, for example, to a small cutting of the JavaBeans syntax (paragraph 43). This enables to move Java-server sides also on a calculator on which no Java Virtual Machine is installed, but conformist term surroundings which need less computing capacity or storage space. As an advantage of this procedure it is given in the patent application that a presentation document for example being in the form of a Java server side can be pulled up in a leading calculator with restricted resources as well as in a better equipped leading calculator for the dynamic generation of structured documents, so no different presentation documents for both calculator types must be developed (paragraph 19). Restrictions can arise from the fact that the interface module of the leading calculator restricted in his resources shows only one limited instruction set and cannot move, therefore, just like that all instructions contained in the presentation document in the same manner like a better equipped leading calculator.
b) With it is given after the administration of justice of the Federal Court of Justice a technical apprenticeship which is accessible as an invention basically to the patent protection.
The Federal Court of Justice has decided already in 1991 that a programme-related apprenticeship is technical if it concerns the effectiveness of a data-processing system as those and allows with it the immediate cooperation of her elements (BGHZ 115, 11 – side buffer). He has looked at the effectiveness of the data-processing system in the dispute at that time in so far as affected when it allows the invention-appropriate apprenticeship to pursue the data-processing system under better exploitation of the main memory and with shorter memory access times (BGHZ 115, 11, 21). He has explained this with the fact that the announced apprenticeship concerns a procedure which passes touching memory (side buffer) in the capture and storage of the information about the topical storage area of an arithmetic process running off in a data-processing system and in a certain loading strategy for to the preferential access to being defeated, but only one choice of memory sides. This procedure concerns the effectiveness of the data-processing system as those, because it contains the instruction to use the elements of a data-processing system at the company immediately in certain way (BGHZ 115, 11, 22).
The patent court has seen in the grounds which there have been for the licensing of the appeal the difference to the dispute in the fact that the invention deals in the case "side buffer" with the internal approach of a data-processing system which stands for itself as a technical device in the centre of the consideration. Accordingly (fundamental) variations of this approach have been valued in technical regard as the patent protection accessibly, even if they have been caused without change only of the hardware structure by a program modification. To reach, nevertheless, to the claimed apprenticeship, technical specialist knowledge and a discussion with the concrete assemblies and functional expiries have been necessary in the data-processing system, while in the dispute have accepted the approach of the server as given and on grounds of conceptual considerations for the processing of data the application of certain software modules is suggested.
This differentiation leans upon the decision “Chinese characters” (BGHZ 115, 23). In this the Federal Court of Justice has looked at the applied for a patent procedure to the input of Chinese signs in text systems which intended a total of one certain memory addressing for the saving of storage space, for the reduction of the access time and for the rise of the speed of the processing process not as a technical apprenticeship because the procedure does not concern the effectiveness of the data-processing system as those in contrast to the case "side buffer"; the concrete signs of the data-processing system would give to the claimed apprenticeship not the determining Gepräge which stands with the mental measures of the Ordnens of the processed data and falls (BGHZ 115, 23, 31).
Nevertheless, for the Technizitätserfordernis it is, how the X civil senate of the Federal Court of Justice in the decision “a control equipment for investigation modalities” (Beschl. v. 20.1.2009 – X ZB 22/07, GRUR 2009, 479) has clarified, unimportant whether the object of a registration also shows non-technical beside technical signs and which of these signs stamp the claimed apprenticeship. Whether combinations from technical and non-technical or from the patent protection to impossible signs are able of patent in particular cases, paragraph 3 PatG – only hangs rather – apart from the possibly appropriate exclusion facts of the matter §1 of it from whether they are new and are based on an inventive activity (Federal Supreme Court GRUR 2009, 479 Tz. 10 m.w. N.) . Therefore, technical character comes up just like that to a device (data-processing system) which is program-technically furnished in certain manner, even if the device erfindungsgemäß of the text treatment serves (BGHZ 144, 282 – linguistic analysis equipment). Nothing else can be valid in the dispute for with patent claim 10 claimed systems which exists of calculators on which with patent claim 1 claimed procedures can be explained to the dynamic generation of structured documents.
Because it is unimportant which signs stamp the apprenticeship announced for the patent protection, it does not depend meanwhile also with a procedure claim for the Technizitätserfordernis on whether the invention teaches (fundamental) variations of the approach of the components of a data-processing system. It is enough rather that she teaches the use of such components and gives with it an instruction to the technical action (Federal Supreme Court GRUR 2009, 479 Tz. 8 – control equipment for investigation modalities; sen. Urt. V. 2/4/2010 – Xa ZR 4/07 Tz. 20 – glass bottle analysis system, for the publication intended). Also patent claim 1 contains with it a technical apprenticeship basically accessible to the patent protection.
c) The applied for a patent technical apprenticeship is also not excluded as a programme for data-processing systems from the patent protection.
aa) after the strengthened administration of justice of the Federal Court of Justice must contain a registration which has a computer program or a procedure achieved by a data processing programme to the object after the Technizität indispensable for the patent ability instructions decisive for procedure which have the solution of a concrete technical problem with technical means to the object (BGHZ 149, 68, 74 – search of faulty sign chains; BGHZ 159, 197, 204 – electronic payments; BGHZ 166, 305 Tz. 17 – prepaid telephone calls; Federal Supreme Court GRUR 2009, 479 Tz. 11 – control equipment for investigation modalities). Because of the patenting exclusion for computer programs as those (§1 paragraph 3 No. 3, paragraph 4 PatG) only such instructions are able to found regularly the patent ability of a procedure which have a problem solution with such means to the object. Not the application of a computer program, but the solution of a technical problem with the help of a (programmed) calculator can entail before the background of the patenting ban a patent ability.
This has to the other result that also in the check of novelty and inventive activity the solution of the technical problem is to be taken in the look. A programme-related apprenticeship is able of protection only if the solution of the concrete technical problem is new and is based on inventive activity. Beyond the technology recumbent instructions are not enough in this connection basically; they matter only in the extent in which they have influence (BGHZ 159, 197, 205 following – electronic payments on the solution of the technical problem with technical means; Federal Supreme Court, Beschl. v. 19.10.2004 – X ZB 34/03, GRUR 2005, 143, 144 – profitability inquiry; Federal Supreme Court GRUR 2009, 479 Tz. 11 – control equipment for investigation modalities).
Only in view of this check of the inventive activity can win, as the Federal Court of Justice has already clarified (BGHZ 159 aaO), the question meaning, "stamp" to what extent the technical solution elements the invention. However, is able – against the view of the appeal – from the decision “search of faulty sign chains” (BGHZ 149, 68) are not derived, only one patent claim stamping technical instructions are suitable to overcome the patenting exclusion (cf. also Federal Supreme Court, Beschl. v. 19.10.2004 – X ZB 33/03, GRUR 2005, 141, 142 – Offer to interactive help; EPA, Entsch. v. 21.4.2004 – T 258/03 – 3.5.1, ABl. EPA 2004, 575 = GRUR Int. In 2005, 332, 333 – auction procedure / Hitachi).
bb) The patent court has appropriately explained that a technical problem forms the basis of the invention, because it is enabled by them to generate dynamically requested structured documents also on leading calculators from the client which do not order Virtual Machine necessary or desirable computing capacity about for the application of rather demanding term surroundings as for example of Java. With it the functionality of a communication system is concerned with the better exploitation of restricted resources of a server with the dynamic generation of structured documents and consequently a concrete technical problem and not about one aim lying beyond the technology (cf. moreover BGHZ 159, 197, 206 – electronic payments; Federal Supreme Court GRUR 2005, 141, 142 – Offer to interactive help; Federal Supreme Court GRUR 2005, 143, 144 – profitability inquiry; sen. Urt. v. 30.7.2009 - Xa ZR 22/06, GRUR 2010, 44 – Dreinahtschlauchfolienbeutel) appealed.
cc) The patent court has meant, the invention-appropriate success is not caused with technical means because he is based on conceptual considerations which flowed into the proposal, a certain software module to plan and to optimise in this manner the software close to system. Of this judgement can become not joined.
Technical means for the solution of a technical problem are given not only when device components are modified or are addressed basically aberrantly. It is sufficient rather, if the expiry of a data processing programme which is used for the solution of the problem, is determined by technical circumstances beyond the data-processing system or if the solution just consists in decorating a data processing programme in such a way that it shows consideration for the technical circumstances of the data-processing system. The at last called condition is fulfilled in this case. The invention-appropriate apprenticeship concerns as the patent court has ascertained legal-perfectly, the basic draught for the generation of dynamic documents. Therefore, she is directed not at the programmer, but at the system designer who has the whole architecture of the data processing system in the eye and considers the different qualities and the efficiency of hard and software components. Just, therefore, she concerns the application of technical means for the solution of the forming the basis technical problem. The fact that the apprenticeship is limited not to concrete measures to the picture of the inquiry parametres on a restricted instruction set, but is formulated rather in the abstract, shall be considered in the check still to be carried out by novelty and inventive activity.
5. The thing is to be referred back therefore to the check of the other demands for the patent ability of an invention to the patent court.
III. The senate has not looked at verbal negotiations as necessary.
Meier's baker Keukenschrijver Mühlens
Bundespatentgericht, decision from the 17.01.2008 – 17 W (pat) 71/04 –