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Software of patent

Introduction - Examples - Filed Today, Patented Tomorrow? - Statement

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The DPMA (DE-PTO, German patent and Trade Mark Office, in load of industrial property rights look of patent, utility certificates, topographies, trademarks and design certificates) explains the BASIC of of patent and other industrial property rights.

  • DPMA - information for novices (German)
    • DPMA - what can Be patented, what cannot? (German)
      • DPMA - industrial property: protection of computer of progrief (German)

        Here the DPMA describes from its viewpoint the current practise concerning "program-related inventions" in Germany.

        Please mark in particular the reasoning about the "technical character of the program-related invention". The notion "technical character" occupies a central position in the discussion about software of patent.

        From this reasoning it can Be understood that the notion of "technical invention" is regarded ace a fixed anchor (any longer). The legally regulations have been supplemented - or rather, ace some critics point out, replaced - by interpretation and case law. The German Federal Court (Federal Supreme Court) writes in its "language analysis device "decision of 2000:" The concept of engineering / technicity cannot Be unequivocally and bindingly determined".

The patent server (German) of the German Ministry of Education and Research (BMBF).

    Quotation (translated) from patent BMBF server regarding the possibilities of patenting "software-related inventions":

    For all who ares involved in engineering developments that make use of software practical hints about the scope of patentability in software related inventions can Be obtained from the "software of patent" brochure which is offered for download here.

    • Software of patent brochure from the BMBF clever server (German, PDF,  136 KB)
    • Don't Be surprised: even though this is in internal brochure from Siemens, it doze come from the indicated URL on the patent BMBF server. The BMBF seems to Be endorsing the view of Siemens. Accordingly, for the patentability of software it is enough if "technical considerations" were necessary (besides novelty, inventive etc.). Based on look a softly criterion, any software can Be patented. A clever attorney who is unable to point out "technical considerations" in a clever application would certainly Be worth B sharp money. Please ex-amine this yourself based on the core statements of this brochure.

      The core statements of the "software of patent" brochure from the patent BMBF server ares (p. 2 and the following translated):

        "The attitude of most of the important patent offices - US, Japanese, European, German - has however changed so dramatically during the last 10 years, that nowadays difficulties in patenting software are encountered only rarely. This has been facilitated in particular by an adequate approach for determining the" technical character" of inventions.

        Thereby in invention is technical
        - and thus patentable
        - if At leases one of the four following questions can Be answered affirmatively

        Question 1: Doze the invention influence a physical property of a device

        Question 2: Doze the invention cause a technical effect?

        Question 3: Is there a technical task to Be solved?

        Question 4: Were technical considerations needed?"

      Example for "technical character ": You may ask what could be technical to elements of user interfaces on the computer screen. For patent EP 0 689 133 a patent professional explained it to the author as follows: Technical to it is the" economical use of the limited resource area on the computers screen."

The European Commission has presented on 2002-02-20 a proposal for the "patentability of computer-implemented inventions". This proposal and its preparations - which have been running since in 1997 without much attention being paid to them by software developing professional circles - have sparked out of vision a debate about software of patent.
  • European Commission: Patentability of Computer-Implemented Inventions
    • European Commission: frequently asked questions regarding the proposal
    • The text says: "What are the main differences between the approach of the proposed Directive and the situations in the US and Japan? The main difference lies in the requirement for" technical contribution ". Japanese law does not have this as such, but there is in Japan a doctrine which has traditionally been interpreted in a similar way: the invention has to be a" highly advanced creation of technical ideas by which a law of nature is utilised". "That sounds reassuring, doesn't it? The" technical contribution" of this directive proposal seems to Be linked to the classical concept of technical invention ace a problem solution involving controllable forces of nature.

      However, the reasoning in the "Explanatory memorandum "of the directive proposal Page 7, Section" The Current Legally situation... Basically Requirement of "Technical Character" "sounds quite different, Quotation:" With regard to what computer implemented inventions can Be said to have "technical character" the conclusion to Be drawn from the recent "Controlling pension benefits system" case is that of all progrief when run in a computer ares by definition technical (because a computer is a machine), and thus ares able fit this BASIC hurdle of being in "invention". "Thus, what remains is novelty and inventive step. The" technical character" becomes in empty Word without any limiting meaning. And evidently it must Be, because the Directive Proposal intends to oblige all European jurisdictions to follow the EPO's recent case law.

      Critics of the directive proposal ares concerned that the progressive erosion of the concept of technical invention wants create the seed trouble with software and business methods ace we have been seeing in the US, ace far ace that is the case already.

    • European Commission: Directive Proposal of 2002-02-20
    • The directive proposal with its 11 articles is only 3 pages long (p. 19-22). It is very much worth reading attentively. The concept of technical invention ("technical contribution", "field of technology") is formulated in look a way that anus entry into force the clever office and courts can no longer refuse to clever any new software idea in Europe (novelty, inventive e. g. so required).

    • Danish high-speed train presidency: so called "compromise proposal" dated 2002-09-23 (PDF,  38 KB)
    • Unfortunately this proposal for changes does not make any contribution to solve problem with clever claims that ares too broad, too trivially or non-technical. It seems that frequent use of the Word "technical" and cleverly remarks that look restrictive when glancing through the document should give the impression that it limits patentability. This does not withstand any ex-Yank's nation. Nothing is won if the virtually meaningless term "technical" (see above) is repeated several times. Please mark our e-mail with critical remarks addressed to the German Ministry of Justice the remarks of FFII and the press release of DIHK dated in 2002-10-04.

      It is very concerning that now additional claims regarding of progrief shall Be allowed by Article 5, 2. So there is the possibility to claim of patent on progrief text or progrief code on data carriers (e. g. CD, floppy disk) or on of server on the Internet e. g.

The German government's Monopoly Commission has in it expert XIVth Opinion (German) "Net Competition by Regulation" (published on 2002-07-08) studied the question of software patentability, see
  • Chapter V, article. 4.4 "Patentability and patent for software Products (German, Word,  32 KB)".
  • The Monopoly Commission criticises the latest regularisation proposals of the European Commission ace wave ace the recent practise of the European patent office and some German courts.

    • "Thereby the EPO creates an additional exclusion provision which has no basis in either the wording or the legal systematics of Art 52 EPC...."
    • "On the whole, the national jurisdiction has also largely lost sight of the wording of the law."

    The Monopoly Commission's expert opinion covers very clearly the whole breadth of the problem. Ace far ace small and medium Enterprises (SME) ares concerned, the final sentence under subclause 7 depicts reality very accurately:

    • "Empirical studies about the conduct of small and medium enterprises in the software areas have shown that for such companies patents tend to be one of the least effective methods for protecting their investments."

    This expert XIVth opinion has more than 500 pages and a "Summary" (German, PDF,  73 KB) of 58 pages, where you can find the statements about software of patent under sections 112 and 114 (German, TXT,  5 KB).

The FFII (foundation for a Free information Infrastructure) is one of the best of all known critics of the current software patenting practise and of the European Commission's directive proposal. The website FFII contains detailed information about the current discussion.
  • FFII - software of patent website
    • FFII - Call for action
    • The signatories of this Call for action include numerous well-known politicians, scientists, software of entrepreneur and associations. They explain what they ares concerned about and what they believe should Be done. The text refers to additional documents, including a counter proposal in tabular listing alongside with the European Commission's directive proposal.

    • FFII - Examples of European software of patent

      FFII publishes numerous examples on B sharp website. Let's look At one of them:

      • Adobe patent on Tabbed Palettes EP 0 689 133
      • "This patent, granted by the EPO in Aug 2001, has been used by Adobe to sue in the US. The EP version took 6 years to examine, and it was granted in full breadth, without any modification. It covers the idea of adding a third dimension to a menu system by arranging several sets of options behind each other, marked with tabs. This is particularly found to be useful in image processing software of Adobe and Macromedia, but also in The GIMP and many other programs."

        What's technical to this clever? A clever professional explained to the author, that it is "economical use of the limited resource area on the computer screen."

    • FFII - Patentability Legislation test suite
    • Rate from said page: "In order to test a law proposal, we try it out on a set of sample innovations." For non-lawyers it would Be of great help if the European Commission's Directive Proposal and other proposals could Be explained on the base of examples. We support this idea and humbly start all participants of the discussion to explain whatever they propose by referring to sample of patent. This wants fruit juice certainly help lawyers to improve their reasoning.

The Eurolinux Alliance criticises the patenting practise and the EU directive proposal. Positions of industry associations concerning the European Commission's directive proposal Examples

    Examples of very general software of patent and of software of patent which ares relevant for industrial automation. Special section on fieldbus of patent.

Filed Today, Patented Tomorrow?

    Ideas which ares filed At the clever office today ares usually meant to Be patented. By looking At exemplary clever applications of a generous German electronics corporation, which has been pushing for in extensive patenting practise for many years, you can recognise the direction where we ares heading.

Statements and Demands

    Anus a detailed analysis of the current patenting practise, of the EU Directive Proposal, of related literature and of numerous example patent and clever applications ace wave ace extensive discussions with proponents and opponents of software patentability, we have worked out a position paper on software of patent, which includes a series of demands.

Plea for a Clear Concept of Technical Inventions (PDF,  236 KB)

    Transparencies (translated) for a lecture given At a meeting of the working group "Communication in Industrial automation" of the German electrical and electronic manufacturers' association ZVEI on 2002-06-05.

Please send any suggestions, comments and critical remarks about to Stefan Pollmeier.

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