German court ruling X ZR 27/07, upholding MS FAT clever, ace text

Below is the text, and on the left to machine translations to English, of the recent German court ruling “X ZR 27/07 ″.

The The Main value of text versions is that we can use on-line of translator to get to approximate translation.

FEDERAL COURT OF JUSTICE
IN THE NAME OF THE PEOPLE
JUDGMENT

X ZR 27/07

Announced in:
20th of April, 2010
More different
Justice-hired
as an Urkundsbeamtin
the office

in the clever gewgaw thing

The X civil senate of the Federal Court of Justice has on the verbal negotiations from the 20th of April, 2010 by the presiding judge crowds and the judges Gröning, Dr. Berger, Dr. Grabinski and Hoffmann

for right recognised:

On the appeal of the defendants the judgment announced on the 26th of October, 2006 of the 2nd senate (gewgaw senate) of the Bundespatentgerichts is changed.

The nullity action is turned down at the expenses of the plaintiff.

For right

The fact of the matter:

1

The defendant is a registered owner of the European patent of 0 618 540 (quarrel patents) which was announced on the 31st of March, 1994 under claim of the priority of an US patent application from the 1st of April, 1993. The quarrel patent concerns a “common storage area for long and short file names” and encloses 23 patent claims.

2

Patent claims 1, 12 and 23 have the following text in the English Verfahrenssprache:

“1. A method of operating a data processing system (10) comprising memory (16) holding companies in operating system (17), and a processor (12) for running the operating system (18), the method comprising:

a) storing (58, 59) in the memory (16) a ridge directory entry (18) holding companies a short file name for a file;

b) storing (58, 59) in the memory (16) a second directory entry (20) being associated with the ridge directory entry (18) and holding company a long file name for the file, said long file name having more characters than said short file name, said second directory entry (20) further holding companies information (42) indicating the said second directory entry (20) holds said long file name; and

c) in case that the operating system (17) permits only short filenames and said information (42) is set to make said second directory entry (20) invisible to the operating system (17), locating the file by accessing said ridge directory entry (18) or, in case that the operating system (17) permits long filenames and said information (42) is set to make said second directory entry (20) visible to the operating system (17), locating the file accessing said second directory entry (20).

12. A data processing system (10), comprising:

(a) memory (16) holding companies:

(i) in operating system (17),
(ii) a ridge directory entry (18) holding companies a short file name for a file, and
(iii) a second directory entry (20) being associated with the ridge directory entry (18) and holding company a long file name for the file, said long file name having more characters than said short file name, said second directory entry (20) further holding companies information (42) indicating that said second directory entry (20) holds said long file name; and

b) a processor (12) for running the operating system (17) and, in case that the operating system (17) permits only short filenames and said information (42) is set to make said second directory entry (20) invisible to the operating system (17), locating the file by accessing said ridge directory entry (18) or, in case that the operating system (17) permits long filenames and said information (42) is set to make said second directory entry (20) visible to the operating system (17), locating the file by accessing said second directory entry (20).

23. A computer readable medium having computer executable instructions adapted to enable a data processing system to perform the method of one of claims 1 to 11. 

3

In the published German translation to loud patent claims 1, 12 and 23 as follows:

 1. Procedure encloses to the incentive of a data processing system (10) which explains a memory (16) which contains an operating system (17), as well as a processor (12), that the operating system (17) and the procedure encloses:

a) To memories (58, 59) of the first list entry (18) which contains a short file name for a file, in the memory (16);

b) To memories (58, 59) of the second list entry (20) which is tied together with the first list entry (18) and contains a long file name for the file, in the memory (16) and the long file name has more signs than the short file name and the second list entry (20) of the further information (42) contains which register that the second list entry (20) contains the long file name; and

c) if the operating system (17) admits only short file names and the information (42) is so put that the second list entry (20) is invisible for the operating system (17), admits discovering of the file by accessing the first list entry (18), or, if the operating system (17) long file names and the information (42) is so put that the second list entry (20) is visible for the operating system (17), discovering of the file by accessing the second list entry (20).

12. The data processing system (10) which encloses:

(a) a memory (16) which includes:

1. an operating system (17),

2. the first list entry (18) which contains a short file name for a file;

3. contains the second list entry (20) which is tied together with the first list entry (18) and contains a long file name for the file and the long file name has more signs than the short file name and the second list entry (20) of the further information (42) which register that the second list entry (20) contains the long file name; and

(b) a processor (12) which explains the operating system (17) and if the operating system (17) admits only short file names and the information (42) are so put that the second list entry (20) is invisible for the operating system (17) which discovers file by accessing the first list entry (18), or if the operating system (17) admits long file names and the information (42) is so put that the second list entry (20) is visible for the operating system (17) which discovers file by accessing the second list entry (20).

23. Machine-readable medium with the instructions workable from a computer which enable a data processing system to explain the procedure after one of the claims from 1 to 11. 

4

Concerning the other patent claims it is expelled to the quarrel patent writing.

5

The plaintiff has applied to explain the quarrel patent for trifling. To the grounds he has argued that his object is not new, arises at least, however, for the expert in obvious manner from a standing position of the technology, and referred in this respect in particular to the “rock of Ridge Interchange Protocol”, version 1, rock Ridge Technical Working Group, check 1.09 from the 24th of July, 1991 (appendix NK 7, German translation). Moreover, he has appealed to the fact that the object of the quarrel patent has been revealed insufficiently clearly and completely and goes out the contents of the priority-founding registration. The defendant has walked towards the complaint.

6

The Bundespatentgericht has explained the quarrel patent with effect for the Federal Republic of Germany for trifling because, in any case, the gewgaw reason of the lacking patent ability would be given.

7

Against this decision the defendant turns with her appeal and the application to change the judgment of the Bundespatentgerichts and to reject the complaint. Auxiliary manner defends them the quarrel patent in limited extent. Concerning the exact text of the auxiliary application reference is made to the meeting protocol.

8

On the other hand the plaintiff applies basically to reject the appeal of the defendants. He brings forward furthermore that the object of the quarrel patent goes out the contents of the original registration and is not able of patent.

9

By order of the senate Prof. has qualified engineer habil. ________ S. __________, chair of informatics 4 (Distributed systems and operating systems), ___________, a written certificate refunded which he has explained during the verbal negotiations and has complemented. Besides, a certificate of Prof. Dr. rer. nat. habil has the defendant. __________ P. ___, operating systems and Middleware, _____________ institute of software system technology, ___________________, and the plaintiff a certificate of Prof. Dr. has.
Dr. h.c. ______ Sp. ____, chair of informatics 4, ______________, presented.

Decisive factors:

10

The allowed appeal of the defendants succeeds in the thing.

11

I. The quarrel patent concerns a procedure to the incentive of a data processing system, a data processing system and a machine-readable medium with instructions workable from a computer which allow the implementation of such a procedure to a data processing system.

12

In the quarrel patent writing it is explained that many operating systems support only short file names. For example, every file name on 11 signs is on the basis of restrictions of the file system in the operating system MS-DOS, version 5.0 limited. Besides, 8 signs are planned for the main part and 3 signs for an enlargement, so that a file name, for example, "EXAMPLE1. EXE” can be. The file system uses a list structure in which every file shows one with her related list entry.

13

For the user restrictions of the name length are impractical because describing file names must be shortened in many cases.

14

In the quarrel patent writing it is expelled to a publication of Y.E. Gail Wang from 1990 in whom a universal standard is introduced for the file naming to improve the software compatibility of Ada programmes and universal file names are fixed according to naming conventions by different operating systems. Besides, becomes after article. 54 paragraphs 3 EPÜ the relevant European patent application 0 578 205 mentioned which describes a Mehrfach-Dateinamen-Referenzierungssystem.

15

The problem forms the basis of the quarrel patent to give a procedure or a system which allows it to use files with the operating systems which admit only short file names, as well as with operating systems which admit long file names.

16

To reach this, patent claim intends 1 following procedure:

1.1 Procedure encloses to the incentive of a data processing system (10) which explains a memory (16) which contains an operating system (17), as well as a processor (12), that the operating system (17) and the procedure encloses:

1.2 To memories (58, 59) of the first list entry (18) which contains a short file name for a file, in the memory (16),

1.3 To memories (58, 59) of the second list entry (20) in the memory (16),

1.4 with the first list entry (18) is tied together, and

1.5 contains a long file name for the file which has more signs than the short file name,

And the second list entry contains (20) distant information (42) which registers that the second list entry (20) contains the long file name;

1.7 Discover to the file by accessing the first list entry (18) if the operating system (17) admits only short file names and the information (42) is so put that the second list entry (20) is invisible for the operating system, or

1.8 Discover to the file by accessing the second list entry (20) if the operating system (17) admits long file names and the information (42) is so put that the second list entry (20) is visible for the operating system (17).

17

The streitpatentgemäße procedure serves the company of a data processing system which encloses a memory and a processor and the memory contains an operating system which is explained by the processor (sign 1.1).

18

In the memory are put on for a file a first one and the second list entry (signs 1.2 and 1.3). From the point of view of the expert with whom it concerns one or several as a team of working together information scientists or engineers with study main focus Informatics who dispose of several years' practical experiences in the area of the system programming, (in the following always only as "an expert" called) arises from the fact that the data processing system shows a list on which all files with her both names are put down and which is implemented on his part as a file. The list entry enables to discover the place at which a file is stored away, and is in this respect as the judicial expert has explained with his hearing, to the table of contents of a book comparably which can be taken on which side a certain chapter begins.

19

After the apprenticeship of the quarrel patent a first one and the second entry are stored away in the list of the data processing system. Exemplarily the formats of the such first and second list entries are performed in the figures 3a and 3B of the quarrel patent writing which are returned in the following:

20

The first list entry contains a short name and the second list entry long (from more sign than the short name existing) names for (one and the same) file (signs 1.2, 1.3 and 1.5). As already mentioned, the operating system MS-DOS, version 5.0 to which in the quarrel patent writing exemplarily reference is made allows to enclose only file name to, (including an enlargement from up to 3 signs) at most 11 signs. With this implementation example short file names are those which enclose all together at most 11 signs, and long those which insist of more than a total of 11 signs (cf. quarrel patent writing Rdn. 14; translation p. 4 the last paragraph) . If a file shows a file name of more than 11 signs and is necessary, therefore, beside the Short file name-list entry also a Long file name-list entry, is put on a Long file name-list entry as well as a short file name list entry and is provided with the long one or the short file name (cf. quarrel patent writing Rdn. 35; translation p. 10 paragraph 4 following; flowchart in Fig. 4, steps 57, 58 and 59).

21

The second list entry is tied together with the first list entry ("associated with"; sign 1.4). Such a linking allows it to operating systems which can admit a long file name and discover the file by accessing the second list entry (sign 1.8) to access also information which is filed in the first list entry. As the judicial expert has explained in the hearing and has been confirmed by the parties, is cancelled with the linking second with the first file entry the need, determined the file to file concerning information (redundant) in both list entries. Rather it is enough to reproach with this information only in the first list entry. Since for the case that the operating system admits long names and discovers the file, hence, by accessing the second list entry (cf. Sign 1.8), it can access about the linking second with the first list entry this information. Such a redundancy avoiding arrangement only of information in the first list entry simplifies the administrative expenses possibly when selbige stored, must be updated or be extinguished and, moreover, saves storage capacity.

22

In in the description of the quarrel patent writing explained invention-appropriate implementation example the linking occurs through the test sum byte field 44 (cf. the figure returned on top 3b) in which a test sum is stored for the short file name (step 72 in figure 5a) to tie together the Long file name-list entries 20 with her suitable short file name-list entry 18 ("to associate with") (quarrel patent writing Rdn. 31, 41, 42; translation p. 9 paragraph 4; see 12 paragraphs 3 and 4).

23

The second list entry contains information which registers that the second list entry shows the long file name (sign 1.6). This information needs an operating system which admits long file names and for which the information is put thus, so that the second list entry is visible, so that it can discover the file by accessing this second list entry (sign 1.8).

24

On the other hand the information is for an operating system which allows only short file names, thus adjustable that the second list entry is invisible for this. Therefore, with suitable setting the file is discovered by accessing the first list entry (sign 1.8). The setting of the information causes that an operating system which admits only short file names does not take note of the second list entry.

25

In the implementation example which is revealed in the quarrel patent writing the file attribute field 42 contains which part of the second list entry is (cf. figure a 3B of the quarrel patent writing), which information which registers whether the second list entry shows the long file name. The file attribute field 42 encloses as 5B of the quarrel patent writing arises from the in the following returned figure, a hidden bit "H", a write protected bit "R", a system bit "S" and a volume label bit "V".

26

In a list entry with a long file name all four called bits are put in the file attribute field 42 on the value "1". The bit combination "1111" is for operating systems which admit only short file names, as for example MS-DOS, version 5.0, invalid. Hence, for these operating systems the list entry containing the second self-long file name remains concealed; the second list entry is "invisible" for these operating systems for the purposes of the sign 1.7. However, recognise operating systems which admit long file names, on account of the bit combination "1111" in the attribute field 42 that the second list entry exists. Consequently for the operating systems which admit long file names the second list entry is "visible" for the purposes of the sign 1.6, so that they can localise the file (quarrel patent writing Rdn under access to this. 36 following; translation p. 11, paragraph 2 following; cf. also certificate of Prof. Dr. S. __________________ p. 8 following; certificates of Prof. Dr. P. _____ p. 26; certificates of Prof. Dr. Dr. h.c. Sp. ________ p. 16 following).

27

II. The object of the patent claim 1 of the quarrel patent does not go out the contents of the registration in the originally submitted version (article. 138 paragraphs 1 C EPÜ).

28

The plaintiff points out to the fact that sign 1.6 after which the second list entry contains information indicate them that the second list entry contains the long file name, has been added only during the examination procedure. He takes the view that the expert could not take sign 1.6 from the original registration. In the description the effect of the value "1" is explained concerning the allocation of the file attribute field 42 of the second list entry with the bit combination "1111" merely for every single bit. Then later it is still explained that the list entry is "nearly invisible for easier operating systems. Nevertheless, it is no speech of the fact that the bit combination "1111" registers that the list entry contains a long file name. Moreover, the expert cannot infer from the description that the bit combination will award "1111" file names only long in the case.

29

Of the argumentation of the plaintiff cannot be followed. Besides, it is overlooked the fact that in claim 18 are described to the registration in the original version that the second list entry contains an attribute field which can be so bet that the second list entry becomes invisible and the step encloses the step for the putting of the attribute field to the memory of the second list entry furthermore, so that the second list entry is invisible for the operating system ("… the second directory entry includes an attributes field which may be set to make the second directory entry invisible to the operating system and the step of storing the second directory entry further comprises the step of setting the attributes field so that the second directory entry is invisible to the operating system." ; Appendix NK 15 p. 23). Moreover, it is explained to the expert in the description in view of the flowchart in figure 5a which points to the colt of a long file name list entry to necessary steps that in the file attribute field 42 four bits are included (a hidden bit "H", a write protected bit "R", a system bit "S" and a volume label bit "V") and which meaning it has if these bits are put on "1" (appendix NK 15 p. 13, Z. 4 following). Finally, it is explained to the expert that if the bits of the file attribute field 42 (figure 5 b), as described are put and the first record cluster field 50 is put on zero, the preferential implementation form of the invention the Long file name-list entries for the operating systems which support only short file names nearly invisibly makes (appendix NK 15 p. 14, Z. 32 following) . The expert closes from it on account of his specialist knowledge that the putting of the bit combination "1111" contains information in the file attribute field 42 of the Long file name-list entry which registers that the second list entry contains the long file name, so that for an operating system, the only short file name admits which is invisible the second list entry and the file can be discovered by accessing the first list entry, while for an operating system which admits long file names which is visible the second list entry and the file can be discovered by accessing the second list entry. The judicial expert also has such a professional understanding in the hearing in view of the places in this respect same-being in comparison to the original version in the description of the quarrel patent (appendix NK 1 Rdn. 37 following, Rdn. 42; translation, NK 17, p. 11 paragraph. 3 following, p. 12 paragraph 4) confirms.

30

III. 1. the object of the patent claim 1 of the quarrel patent is patentable (article. 138 paragraphs 1 a, 52 EPÜ)

31

a) The object of the patent claim 1 does not refer to a programme for data-processing systems as those (article. 52 paragraphs 2 C, paragraph 3 EPÜ).

32

After the strengthened administration of justice of the Federal Court of Justice 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 must contain the 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). Put solution is enough in patent claim 1 of the quarrel patent under protection for these demands. Since this concerns the technical problem as certain data must be filed in a memory by data-processing systems to the access for different operating systems, and it solves by means of a certain arrangement of the memory allocation.

33

b) The object of the patent claim 1 of the quarrel patent is new (article. 54 EPÜ).

34

The rock Ridge Interchange Protocol, version 1, rock Ridge Technical Working Group, check 1.09 from the 24th of July, 1991 (in the following RRIP called; appendix NK 7, German translation) is an enlargement of the ISO 9660 standards which concerns a file system for CD-ROMs. CD-ROMs are memory media which can be described only unique (appendix NK 7 segment 2; cf. also certificate Prof. Dr. S. ______________ p. 11; certificates Prof. Dr. Dr. h.c. Sp. ______ p. 9). After the ISO in 9660 standard the file names are arranged in a Dateideskriptor which is put down on the list of the ISO file system. Dateideskriptoren after the ISO in 9660 exist of firm (byte 0-31) and a variable area (from byte 32). The maximum total length amounts to 255 bytes (certificate Prof. Dr. S. _______________ p. 12). The construction of a file entry after the ISO in 9660 standard can be taken from the in the following returned figure 6-29 from the sheet “ISO 9660 Extended by rock Ridge” (during the negotiations from the 26th of October, 2006 before the Bundespatentgericht of the defendants presented arrangement):

35

The file name after the ISO in 9660 standard is limited to 8 signs which 3 signs long supplement part can follow. How arises from figure 6-29, the length (including the supplement part) maximum 11 signs of long file name is defined by the immediately leading the way byte "L", while the first byte (Directory entry length) fixes the total length of the Dateideskriptors.

36

The RRIP uses in the ISO in 9660 to standard intended system Use area and in it in particular the system Use field "NM" to allow the Abspeicherung of an alternative name to the users of the POSIX file system (cf. appendix NK 7 segment 4.1 and 4.1.4). After the RRIP no obligation exists to the use of the "NM" field. If with a list entry the "NM" field is booked, the file name is used after the ISO in 9660 standard (appendix NK 7 segment 4.1.4).

37

The construction of the "NM" field arises from the figure returned on top 6-29 (cf. also appendix NK 7 segment 4.1.4, table 10). The first both bytes concern the sign result "N" and "M". The next byte gives the length of the alternative name. After the version number (here 1) and the flag field the alternative name which can have a maximum value of 222 bytes (255 bytes – [32 + follows 1 byte], cf. certificate Prof. Dr. S. _______________ p. 13). The RRIP teaches the expert, finally, that for discovering the file on the file name after the ISO in 9660 standard or the alternative file names is fallen back, depending on whether a "NM" system Use field exists for a component of this file name (cf. appendix NK 7 segment 5.2.3). After the explanations of the judicial expert in the hearing finds an operating system which admits only short file names after the ISO in 9660 standard, the file by access to the file name after the ISO in 9660, while to an operating system, the file name admits after the RRIP, by the "NM" field is indicated that a long file name is stored away.

38

b) The RRIP defines to the actual support of the POSIX file system entries for the system Use area which is planned as a part of a list entry after the ISO in 9660 standard (cf. appendix NK 7 segment 2, 4.1). In particular in the RRIP the "NM" system Use field is defined which opens the possibility to lend 9660 intended, on in length of 8 signs plus a supplement of 3 signs restricted name – an other alternative name to the file – beside which after the ISO which can enclose up to 222 bytes. Though with it the RRIP reveals a procedure to the incentive of a data processing system after which a short one and a long file name is stored for (one and the same) file. However, the short one and the long file names not – like in the signs become 1.2 and 1.3/1.5 intended – in a first and in the second list entry stored, but in the (only) list entry. Since after the RRIP standard the name field is used within the scope of the list entry after the ISO in 9660 to store away standard correspondent short file names with the ISO in 9660, and standard intended system Use field cannot be used in the ISO in 9660 to the storage of the "alternative", to the length restriction of the ISO 9660 standards engaged long file names. The RRIP suggests a file entry which contains a short one as well as a long file name for a file what does not correspond – as the judicial expert has confirmed with his hearing – to the demands of the patent claim 1.

39

c) The other Entgegenhaltungen to which the plaintiff has not come back in the hearing any more are at a distance further from the object of the quarrel patent than the protrudingly treated rock Ridge Interchange Protocol. The publication already considered in the granting procedure of Y.E. Gail Wang, Ada UNIVERSAL-FILE-NAMES FOR, Ada Letters, January in 1990, Vol. 10, No. 1, p. 111-117 (appendix NK 3, German translation) and the Japanese patent application Showa 64-41039 (appendix NK 10, German translation) additional files intend on which to an existing file enlarged attributes, as for example a long name, can be stored and do not reveal with it the memories of the first list entry which contains a short file name for a file, and the second list entry which shows a long file name for the file (cf. certificate Prof. Dr. S. ________________ p. 20 following, 23 and 29; certificates Prof. Dr. P. ____ p. 30, 39 and 51). The European patent 0 578 205 (appendix NK 4, German translation) describes a procedure after which a use-formatted file name (short name) based on a known operating system-formatted file name (long name) or vice versa is generated and the names are stored in a use entry and an operating system entry in a B tree structure and does not teach with it also the storage of a long one and a short file name in a first one and the second list entry (cf. certificate Prof. Dr. S. ____________________ p. 21; certificates Prof. Dr. P. _____ p. 46 following).

40

2. The object of patent claim 1 arises for the expert also not in obvious manner from a standing position of the technology (article. 56 EPÜ).

41

The problem underlying to the quarrel patent to give a procedure or a system which it allows, files with operating systems which admit only short file names, as well as with operating systems which admit long file names to use positioned itself to the expert in view of operating systems which had been developed at a time, as a storage space for calculator, in particular personal calculators (staff computer) was extremely scarce and expensive, so that the length was limited by file name, how the name format 8.3 with the file system FAT (the file Allocation Table) which was used to the operating system including MS-DOS, version 5.0. Similar name formats have intended at that time also other operating systems as for example UNIX. Nevertheless, these Limitierungen were felt in the beginning of the 90s increasingly as annoying, so that the wish originated to give up the restrictions concerning the length of the file name with new operating systems. A file had to go by a long file name which was lent by the user, can be addressed. Nevertheless, at the same time was the so-called. To guarantee Abwärtskompatibilität with the old operating systems. The files which could be discovered by a new operating system with a long file name should be able to be discovered furthermore also by the old operating system which admitted only one short name.

42

The solution of this problem decisively depended on the default of the respective file system. With the file system to FAT or the operating system MS-DOS, version 5.0, the difficulty lay in the fact that in the file entry no field is planned for a long file name. The system had not been furnished from the outset vorwärtskompatibel. Though there is in the list entry to FAT beside the file name field 24 limited on the format 8/3 an aloof field 28 which begins with the pawning 0Ch and is 10 bytes long (cf. quarrel patent writing Rdn. 28; translation p. 8, paragraph 3). Nevertheless, the memory reserve available with it is insufficient to allow the aimed name assignment widely free of restriction to the users.

43

The rock Ridge Interchange Protocol contained no suggestion going out about that for the solution of the problem for the expert. Since the RRIP suggests using available system Use area by means of the "NM" system of field USE for the storage of an alternative long file name in the Dateideskriptor after the ISO in 9660 to standard from the start. Space is available with a maximum length of 222 bytes also enough for this alternative file name. Nevertheless, such a beginning let itself in MS-DOS, version 5.0 do not realise because this is too small in this respect alone being considered aloof field 28 with 10 Bytes and a compelling given size of the whole list entry of 32 bytes (cf. certificate Prof. Dr. S. ____________________ p. 9).

44

Also the other Entgegenhaltungen did not help the expert. The arrangement suggested there of the additional files on which enlarged attributes can be stored like the long file name or the storage of the short one and the long file name in a B tree structure (cf. appendixes NK 3, NK 10 and NK 4), lead in another direction.

45

The expert who still wanted to develop an operating system which can use long file names and is at the same time with MS-DOS, version 5.0 abwärtskompatibel had to turn away from the solutions used with other operating systems and try instead of this to create the possibility for a long file name within the scope of the file system structure FAT. For it it required the knowledge that this can be realised by the fact that beside the list entry with the short file name, another or several other list entries are put on for the long file name and already in the file system structure FAT available, but yet occupied function is not used to be able to take access to a file with MS-DOS to version 5.0 under a short file name and with the following new operating systems under the long file name. This consideration was speculative from view at that time because could not be certain at the beginning of the works yet whether the file system structure FAT contained generally such a function.

46

To find out whether such a function was put on within the scope of the file system structure FAT, in particular the MS-DOS-list entry had to be analysed selbige and, besides what (how the judicial expert has explained in the appointment understandably), in any case, for an expert who followed this job by order of the defendants and had, therefore, access to the source code as well as the documentation of MS-DOS, was possible in principle, and also was excluded for an expert who did not have these access possibilities not from the start because this could disclose the information necessary in this respect by Disassemblieren of the binary coding computer language. On the basis of such an analysis the expert had to develop then the image that possibly four attributes can be used in the attribute field by MS-DOS-list entries in the file system structure FAT for the called purpose.

47

However, in this respect one of the attributes was not considered for itself taken. Since a meaning was already assigned by MS-DOS in each case to these when the accompanying bit on the value "1" is put. In detail the hidden bit (Hidden bit), a file pretends afterwards as "concealed", so that this is not indicated with normal search, the write protected bit (Read's Only bit) prevents that a file is headlined, the system bit (system bit) causes that the file is not indicated, and contains the volume bit (Volume bit) the Bezeichner for the memory medium (cf. certificate Prof. Dr. P. S. 54).

48

Rather it required only of the other knowledge that the setting of all four called attributes on the value "1" – the bit combination "1111" – can never seem in the normal company on MS-DOS FAT formatted medium, therefore, is invalid and leads this to the fact that the name function of all operating systems to MS-DOS including, version 5.0, the second long name does not take note of containing file entry and is "invisible consequently for these operating systems for the purposes of the apprenticeship of the quarrel patent (certificate Prof. Dr. S. ____________________ p. 8; certificates Prof. Dr. P. ____ p. 54 following; certificates Prof. Dr. Dr. h.c. Sp. ____ p. 26). Hence, the bit combination "1111" was able for operating systems of the generations to MS-DOS, version 5.0 to the memory or announcements of a long file name in the second list entry or. to other list entries are used and furthermore the access possibility existed for the operating systems to MS-DOS, version 5.0 about the short file name of the first list entry.

49

The precalled considerations were not obvious for the expert. This is valid first for the consideration that the access to long file names with new succession operating systems is possible to MS-DOS, version 5.0 with concurrent Abwärtskompatibilität with operating systems to MS-DOS including, version 5.0 by the arrangement of a first one and the second list entry if a function occupied not yet up to now can be found in the file system structure FAT and be used for the setting the course between an access about the short or about the long file name. However, in addition, this is valid also for discovering the bit combination "1111" as information which makes the second long file name containing list entry for operating systems to MS-DOS including, version 5.0 invisibly, while in it at the same time for operating systems of the succession generations the information lies which one or several other list entries exist which contain a long file name. For it there were not suggestions with other operating systems at the priority time and how the judicial expert has confirmed in his certificate explained (certificate Prof. Dr. S. _______________ p. 28 following) and in the appointment, this knowledge profit cannot be also looked as a bare routine achievement about an expert.

50

IV. The order for costs is based on §121 paragraph 2 sentence 2 PatG i. V. with §§91, 97 ZPO.

Crowds          Gröning          Berger
          Grabinski Hoffmann

Preauthorities:

Bundespatentgericht, decision from the 26.10.2006 – 2 Ni 2/05 (EU) –