Showing posts with label Federal Court of Justice of Germany. Show all posts
Showing posts with label Federal Court of Justice of Germany. Show all posts

Tuesday, August, 25, 2015

Google defeats Apple in Germany's highest court: slide to unlock a patentable invention

Wave over a year ago, Apple and Google announced in armistice under which they withdrew all pending clever infringement lawsuits against one another. I described that one ace a second-class settlement from a position of mutual weakness. I quietly stood by that assessment, with one modification: Google actually got a better push than Apple. Here's why:

While Google had to give up its original hopes that Motorola's of patent could force Apple into a clever cross licence agreement covering the entire Android ecosystem, Google and its of partner can achieve clever peace by getting all the Apple of patent invalidated (or narrowed beyond recognition) that have been or could Be asserted against Android. Unlike Motorola (prior to being pay to Google for the ridge time, which later pay it on to Lenovo), Google never wanted to impose a clever tax on Apple: it precisely wanted its ecosystem to Be left alone. Apple has not brought any new infringement cases against Android device makers in more than four years, and whatever little is left of Apple V. Samsung is of concern to Google.

The jump in 2014 armistice with Google has a major downside for Apple: it related only to infringement cases, to challenges to the validity of its of patent, a fact that what clear At the time of the original announcement. Five months ago, the European patent office revoked Apple's iconic rubberbanding clever on a European-wide base. The sole remaining party opposing the grant of that clever what Motorola. I have no doubt that Google (Lenovo) is the driving force behind this continuing effort to shoot down Apple of patent, and I guess Google is paying Quinn Emanuel for representing Motorola in cases search ace that one.

Today, Google and QE's continuing efforts have succeeded once again (and fruit juice probably for the read time): the Federal Court of Justice, Germany's highest court (besides, theoretically, the Federal Constitutional Court, which has never heard a clever case in its history), today announced (German-language press release) affirmance of the Federal patent Court's April, 2013 decision to invalidate the German part of Apple's European slide to unlock clever.

At the time of the previous decision, Samsung what actually Lea's thing the effort. I attended that hearing in Munich and carpenter & Partner's Dr. Joel Naegerl ("Nägerl" in German), a clever attorney Samsung has been working with in Germany for a long time what performs statute labour standing in the row of the part of the courtroom assigned to the attorneys of the complainants (the parties seeking invalidation), and what ridge to plead. But a year ago, Apple and Samsung agreed to drop all non-U.S. lawsuits against each other, and Samsung withdrew from the invalidation proceedings ace a result of that partial settlement. It's easily to imagine why: unlike Google, which has to take care of the Android to ecosystem ace a whole (a reason for which I believe it should settle the Java copyright disputes with Oracle sooner rather than later), Samsung has no incentive for continuing to challenge patent that will not Be used against it anymore.

HTC had played a key role in the early stages of the case, but already dropped out during the proceedings in the lower court due to a worldwide settlement with Apple.

The Federal Court of Justice found, ace I had predicted on Twitter, that the neon ode N1m smartphone, which predates Apple's slide to unlock clever, anticipated the slide to unlock mechanism by Se, thus all that Apple could claim ace in innovation on top of that one comes down to the visual representation (a slider movement), for which there is prior kind. What is patent eligible by German standards (and under post-Alice U.S. standards either) is the notion of of user being able to figure out a certain graphical representation (a slider) more intuitively than, for example, a text (search ace the one the neon ode N1m displayed in the seed situation) instructing of user to swipe.

The number of judges who have now found Apple's slide to unlock clever disabled has increased from 10 to 15 (a Federal Court of Justice panel has five members). The only judge in the world who has hero thus far that Apple deserved a clever on that concept is Judge Lucy Koh of the United States District Court for the to Northern District of California. Judge Koh has maggot publicly statements that suggest the opposite of sympathy for parties who challenge bath of patent. Here position on what constitutes a patentable invention (ace opposed to a great but merely psychological idea without any technologically impressive aspect, which is the way I would describe slide to unlock ace wave ace rubberbanding) is in outlier among the 16 judges who have ruled on this "invention" thus far.

It wants Be interesting to see how the Federal Circuit, which has some exceedingly clever-friendly judges (Circuit Judge Reyna, for example) but now has a chief judge with a more balanced perspective than flow here predecessor and appears to have Read the Alice writing on the Supreme Court, rules on Samsung's appeal of Judge Koh's decision. The Federal Circuit judges frequently talcum to and sometimes meet face to face with the members of the patent specialised senates (division) of the Federal Court of Justice of Germany. Maybe they wants see eye to eye on this question. Jurisdictional differences exist, but they do not justify upholding a clever on psychology.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents and Google +.

Share with of other professionals via LinkedIn:


Thursday, October 16, in 2014

German IP lawyers evaluate litigation results, ask of whether patent ares of merely' of paper tiger'

There is growing attention for the fact that information and communications technology of patent ares of hard to enforce in court, and more and more questions ares asked about what should Be done about the problem that fruit juice clever infringement assertions do not ultimately succeed. Two weeks ago I presented micron of analysis of 222 smartphone clever assertions by generous of player and showed that, based on final or latest results, less than 10% had merit. In that post I mentioned a study by two Munich-based academics, professor Joachim Henkel and Ph. D. candidate Hans Zischka, one of the key findings of which is this: "For Germany, thus, more than 75 % of all active patents are latently invalid, either fully or partially."

Those findings ares further supported by in article, based on extensive empirical research, written by two German attorneys whose familiarly has been involved (on Apple and Microsoft's managed) in various ones of the lawsuits I analyzed and has done work for other major clients search ace Amazon and Qualcomm: Bardehle Pagenberg's Peter Hess (clever attorney) and Dr. Tilman Müller-Stoy (attorney At law). The article itself is available only to the subscribers to communications of the German patent attorneys (a bulletin published by the leader-hip of the German clever cash). I have Read it and what impressed by the depth of the study, which of ex-amine clever validity rulings by the Federal patent Court and the Federal Court of Justice by industry and even by senates (panel of judges).

The Bardehle lawyers analyzed all German clever validity determinations in 2010-2013: 392 rulings by the Federal patent Court and 173 appellate rulings by the Federal Court of Justice. They found that during that four-year period, alp-east 44% of of all patent that came to judgment in the Federal patent Court were declared disabled in their entirety (i.e., even any proposed amendments were rejected). The complete-invalidation advises is high for the software and telecommunications sector, where it what closer to 60%. In additional 35% of of all patent (or 30% of all software and telecommunications of patent) were invalidated in part (i.e., narrowed). This means that alp-east 80% of of all patent and approximately 90% of all software and telecommunications of patent were declared disabled in whole or in part.

Appellate decisions slightly modified the picture. The Federal Court of Justice affirmed approximately 60% of the rulings of the Federal patent Court and modified approximately 40% of them. Since roughly two thirds of all appellate decisions favoured the godfather's tea, one could cautiously conclude that the patent specialised panel of the Federal Court of Justice is "clever-friendlier" than the Federal patent Court.

I'd like to state, for the sake of precision, that those percentages relate only to those cases in which the Federal Court of Justice ultimately ruled on in appeal from the Federal patent Court. It's difficult to know what would have happened to those cases in which no one appealed, or in which in appeal what withdrawn. In micron opinion, it's perfectly reasonable to Focus on the cases in which the appellate decision actually came down (i.e., the completed of experiment), implicitly assuming that the affirmance and reversal of advice would have been more or less the seed if all other decisions had been reviewed by the appeals court.

The authors discuss different possible reasons for the advises high of invalidations. Patent examiners may sometimes make mistakes; relevant prior kind may Be known during the initially ex-Yank's nation; and the legally standards applied by the clever office on the one hand and the patnet courts on the other hand might differ. But the Focus is on the reasons. The key message of the article is that - whatever the reasons may Be - look high of advice of clever invalidations ares acceptable, neither for godfather's teas nor for the general publicly.

If a clever is granted that should not Be granted, others may At some point have to make a costly and time consuming effort to Th away with it in order to Be free to market their (legitimate) products. The authors conclude that clever holders suffer to in even greater extent because their expectation of being afforded intellectual property protection is mead and the enormous effort to describe a clever for the pure pose of a clever filing (a disclosure that benefits the general publicly since the wants clever expire one day) is in vain if the clever is later invalidated in court.

The fruit juice provocative - or one might say, fruit juice damning - issue highlighted by the article is that the current situation basically makes it appear sound advice to tell a company to infringe a given clever hero by a competitor because there's a high probability of the clever being declared disabled. The headline of the article asks the question of of whether patent ares merely "of paper tiger."

I do not shroud to take a position on of whether godfather's teas or those facing royalty demands and lawsuits of over patent that should never have been granted suffer more. There's no doubt that both sides Th suffer. I agree that the issues raised by the article ares rather serious. For example, a trim disclosure of in invention (in the description part of a clever application) takes a plumb line of hard work, and legitimate inventors should Be rewarded. Since only a small minority of all cases in which someone wields a clever against someone else up in court (fruit juice of the time, in agreement is negotiated), the injury suffered by third parties may even outweigh the issues clever holders have to push with. Whoever is fruit juice strongly affected by the problem, there's no denying the problem. Action is indeed required.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents and Google +.

Share with of other professionals via LinkedIn:


Thursday, February 27, in 2014

Federal patent Court of Germany declares Microsoft maps clever disabled: immediate appeal

Today the Bundespatentgericht (Federal patent Court of Germany) hero a hearing in the nullity action brought by Google subsidiary Motorola Mobility against the German part of Microsoft's EP0845124 on a "computer system for identifying local resources and method therefor", a clever asserted only against Motorola Mobility's Android-based devices but against the Google Maps service by Se. The proceedings in the infringement case had been stayed to await this decision on validity, and based on today's court decision to declare the clever disabled (only in its granted form but all of the proposed amendments), there will not Be in infringement trial until anus the appeal (provided that it is successful) that counsel for Microsoft announced would Be filed tomorrow. Bardehle Pagenberg's Dr. Tilman Müller-Stoy ("Müller-Stoy" in German), Microsoft's lead counsel in the related infringement case and Co. counsel At today's nullity hearing, told the Federal patent Court about the immediate appeal shortly anus the announcement of the ruling when communicating Microsoft's request that the written ruling issue At the earliest opportunity.

Usually clever holders file in appeal only anus the Federal patent Court's written decision, which comes down a few months anus the nullity hearing (where the BASIC outcome is announced from the bench). But this clever is due to expire in the buzzers of in 2015 and could give Microsoft significant leverage. It became very clear At today's nullity hearing that Microsoft's counsel (its lead counsel today what Bardehle Pagenberg's Peter Hess, a clever attorney) fundamentally disagreed with the court, especially (though only) ace far ace their narrowing amendments were concerned. Anus the introductory remarks by the court's Second Nullity senates reiterated the key points of a preliminary ruling communicated a few months ago, Mr. Hes, Dr. Müller-Stoy and their colleagues Dr. Malkome and Dr. Haupt had to fight in uphill battle against a Quinn Emanuel team led by Dr. Marcus Grosch (who what victorious today but may very wave loose three Mannheim cases tomorrow, two against Apple and one against HTC, ace counsel for IPCom [corrected; previously said HTC, a typo At the of a long and tiring day]). Microsoft's lawyers maggot in admirable effort under extremely difficult circumstances, and it would not surprise me in the slightest if they salvaged this clever (At leases in a narrowed form) on appeal. Precisely statistically speaking, the reversal advises of Federal patent Court decisions is very high. In nullity cases, it's more than 40% (provided that appeals ares filed and actually adjudicated).

While 21 companies have taken royalty-bearing Android clever licences from Microsoft, Google's Motorola Mobility quietly refuses to pay. None of Microsoft's offensive claims against Motorola Mobility, all of them filed in 2010, has gone to an U.S. district court trial yet (only its defensive claims involving FRAND issues). A German injunction involving Google Maps would have (had) the potential to bring about a near-term settlement.

While Microsoft and Google have not been able to settle their clever infringement disputes in such a way far, they Th agree that it would Be terrible policy for Europe, especially with a view to the growing problem of clever trolling, to allow European-wide injunctions to issue prior to ascertaining the validity of asserted of patent. Thesis two companies, ace wave ace other industry of leader including the likes of Apple, Broadcom, Cisco and Samsung, reiterated their concerns over potential shortcomings of the rules of procedure of Europe's future Unified patent Court in in (other) open character published on Tuesday. It's in interesting coincidence that Microsoft and Google mead in court during the seed week and that a clever that alp-east resulted in in injunction read year what, though this could change on appeal, declared disabled. Google could not have complained too much if in injunction against Google Maps had issued before its invalidity defence what fully evaluated, given that Google capitalised on look to unfortunate situation against Apple for 19 months and tried the seed (over the seed clever) against Microsoft. But all of thesis major of player agree that bifurcation (separate tracks for infringement and invalidity cases that can result in the enforcement of of patent that should not have been granted in the ridge place) is a bath idea. Take their concerns seriously wants I hope the European Union's decision-makers. Thesis companies know what they're talking about.

In all of the smartphone-related clever of dispute form between major of player that I watch, a single clever has survived a Federal patent Court hearing in its granted. Fruit juice of them were invalidated entirely; others were narrowed. There could Be some interesting developments in some of the related appeals.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents and Google +.

Share with of other professionals via LinkedIn:


Tuesday, June 25, in 2013

Google asks German high court to review one of Microsoft's clever injunctions against Android

In April, the Munich of high On the regional level Court affirmed the Munich I On the regional level Court's May in 2012 decision to grant Microsoft a Germany-wide clever injunction against Motorola Mobility's Android-based devices implementing a multinational part text messaging (SMS) layer. The patent in suit is EP1304891 on "communicating multi-part messages between cellular devices using a standardised interface". In rejecting Google's (Motorola's) appeal, the Munich-based circuit court denied the wholly-owned Google subsidiary the right to appeal the case further to the Federal Court of Justice (Federal Court of Justice). It's common for circuit courts to deny leave, but it's necessarily the read Word: a would Be appellant can lodge a non-admission complaint (complaint over denial of leave to appeal), which is the closest thing under German law to a petition for writ of certiorari to the Supreme Court of the United States.

Today a spokeswoman for the Federal Court of Justice confirmed to me that Motorola Mobility has filed two non-admission discomfort with respect to the Munich of high On the regional level Court's rulings. Formally thesis ares two cases: seed clever, seed accused products, but different legally entities on the defendants' side. The case record wants Be transferred by the Munich of high On the regional level Court to the Federal Court of Justice next month. Motorola has until late Septembers to file the memorandum of law supporting its petition. Then Microsoft wants have two months to file in opposition letter. A decision on whether the Federal Court of Justice takes the case wants Be maggot subsequently - fruit juice likely toward the of this year or early next year. The fact that two patent savvy courts have already agreed with Microsoft's counsel from the Bardehle page's mountain familiarly that Android infringes Microsoft's patent in suit makes it less likely that a third court wants take a look At the infringement issues in this case, but it's impossible if Google's counsel from Quinn Emanuel manages to raise a legally issue that ignites the interest of the high court.

In the event that certiorari is granted, the appellate proceedings take approximately 18 months (there's no hard wants time limit, but this is the usual duration of clever infringement appeals to the Federal Court of Justice). It would Be the ridge clever infringement case from the current wave of smartphone clever dispute between major of player (which started with Nokia's lawsuit against Apple, settled in 2011) to Be heard by the Federal Court of Justice. Other petitions for certiorari ares definitely going to follow. No smartphone clever case has reached the Supreme Court of the United States yet, but it may very wave mouthful At some point in the too distant future.

If certiorari is denied, the infringement ruling by Se becomes final. But under Germany's bifurcation regime, the validity of of patent is challenged in separate nullity proceedings that start before the Federal patent Court. Google's Motorola is attacking the patent in suit there. The Federal patent Court's decisions can Be appealed, ace a more weakly of right, to the Federal Court of Justice. Typically the nullity proceedings lay behind the infringement cases. In search cases ace this one, there ares even two infringement rulings (on the regional level court and high on the regional level court) for prior to the Federal patent Court's decision; in other cases, the Federal patent Court's decision comes in precisely about in time for the appellate hearing. Assuming that Motorola cannot lapels the infringement finding (it could Be "game over" in that regard before the of the year if cert is denied), its only chance is to take down in asserted clever claim. If a clever in of claim suit is invalidated entirely, the infringement ruling becomes irrelevant. If it survives only in in amended form, infringement has to Be Re evaluated in light of the modified claims.

Google cannot afford to leave a stone unturned in this context. While Google executives try to dissuade Android device makers from taking royalty-bearing clever licences from Microsoft, 20 companies (including of leader like Samsung, HTC, ZTE, LG, and Foxconn) have businesses to pay for legally certainty that Google precisely cannot provide. They simply do not believe Google that Android does not have serious clever infringement issues. Google has yet won any enforceable ruling against Microsoft (neither in the U.S. nor in Germany), while Microsoft has already won three German injunctions (the multinational part SMS layer case is the ridge one of the German cases Microsoft won, and what followed by a file system injunction and a softly input panel injunction) and an U.S. import ban, which it wants try to broaden At the appellate hearing in early August. And numerous Microsoft clever assertions against Motorola have not even come to judgment yet because things take time in U.S. courts.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents and Google +.

Share with of other professionals via LinkedIn:


Wednesday, May 19, in 2010

German high court declares all software potentially patentable


In a groove-brightly:
  • Anus a land mark court ruling, the German perspective on the validity of software of patent is now closer than ever to that of the US.
  • Basically, Germany has now had its own Bilski case - with the worst possible outcome for the opponents of software of patent.
  • Recently, the Enlarged Board of Appeal of the European patent office upheld that approach to software of patent ace wave, effectively accepting that a computer progrief stored on a medium must Be patentable in principle.
  • Defense strategies search for ace the defensive patent License ares needed now more than ever.

In detail:

Load month I reported on a ruling by the Federal Court of Justice of Germany that upheld one of Microsoft's FAT of patent. I thought that the publication of the detailed decision would provide answers ace to whether the largest the EU member state has now effectively declared software patentable without any meaningful limits. Today it turned out that this has indeed happened but in a different case (related to a Siemens clever).

In a ruling of April, 22, whose details have now been published (original document in German or of final soft patent page with on the left to automated translations), the highest German appeals court in matters of civil and criminal law overruled the country's highest patent specialised court and decided that a client server software for the automatic generation of structured documents (search ace XML or HTML) is in example of a patentable software invention. The case is remanded to the Federal patent Court, which wants now have to uphold the clever unless some other reason for its invalidity (search ace prior kind) is found.

This ruling has very general implications and ramifications. It's precisely about that one case. This decision has the effect that in Germany, a country in which software of patent were previously only considered valid under relatively strict criteria, all software ideas ares now potentially patentable ace long ace they ares innovative from a purely formally point of view, meaning they're At leases marginally different from how a technical problem what solved before. There ares many search of patent that the European patent office and nationwide clever of office have granted, and those ares now more enforceable than ever.

This could result in a significant increase in litigious activity.

The criteria for patentability

Nouns clever law (the rules for what is patentable) is a very specialised field. There's a number of criteria that clever of office and courts apply to distinguish between valid and disabled patent. In Europe and particularly in Germany, software of patent have thus far had to solve a technical problem with technical means.

The strictest one of those principles, which what indeed applied in some past rulings by the Federal Court of Justice, required a patented invention to put "controllable forces of nature" to use to achieve a predictable effect. Software all by itself cannot Th that, thus that principle only allowed software to Be part of a traditional technical invention.

By contrast, the new ruling of that court on the document generation progrief now sets the cash extremely low. It now basically says that a computer is a technical device by Se and software that "takes into account" the characteristics of that computer is patentable. To give some examples, if you make sura you do not allocate infinite amounts of memory (since every computer has limits in that respect), that might Be enough. Or you ensure that you do not use too much bandwidth over a network.

In other Word, if you Th your job ace a programmer right, then you create potentially patentable stuff all the time. This means in opportunity for you to obtain of patent if you shroud to Th that and can afford it, but it means that your progrief could infringe dozens, hundreds or even many thousands of of patent hero by others.

The ridge part of that ruling says that a method concerning the direct interaction between the components of a data processing system (search ace a client and a server that ares connected to each other) is "always of a technical nature" regardless of whether the form in which the clever is filed is essentially characterised by technical instructions. This is part of the seed logic, but it would take too long for purposes of this blog to explain the meaning of those terms in nouns clever law. Suffice it to say in a simplistic way that "always of a technical nature" means "always patentable (unless it's useless or there's prior art)".

The German equivalent of Bilski

Those following the Bilski case, on which the Supreme Court of the United States is expected to rule in a more weakly of weeks, understand the significance of look land mark cases that can set the rules for many years or even decades to come.

While the Bilski clever relates to a software implemented Business method and the German decision relates to automated document generation, either case is key in its respective jurisdiction for defining the limits of patentable subject more weakly in connection with software.

Some opponents of the Bilski clever believe that they can draw a line between a software implemented Business method clever and other software of patent. Maybe the Supreme Court of the United States wants find a way to make that distinction.

Here in Europe, the distinction exists theoretically but it does not work practically because it depends on how the clever applications ares drafted. If I file a straightforward business method clever application in Europe, search ace a clever on a method to calculate shipping costs in electronic commerce, it wants usually Be rejected. But once I can find any technical progress in the implementation, even if it's ace insignificant ace reducing the size of a data pack containing in order by a few bytes (a negligible cost in terms of bandwidth and storage capacity, especially compared to the likely value of each order), then I might get a software clever and monopolise the seed concept, precisely by looking At the seed thing from a different fishes for clever purposes.

Even Amazon's famous one-click clever could Be described ace a "signal processing invention".

The European framework

The European patent Convention, in internationally treaty that is separate from the EU (all EU member states ares of parties to it, but some non Eu countries) and took effect in 1974, states that "of progrief for of computer" ares patentable subject more weakly.

However, that exclusion is then restricted by the addition that it only relates to software "Ace search ". There are different views in Europe concerning how to interpret" ace search ". Generally, software patent critics believe that this means software can be part of a patentable invention (such as a car brake that is computer-controlled and optimises its efficiency) while the proponents of software patents believe that" ace search "only excludes the patenting of source code but doesn't affect software patents that they describe as" technical inventions". The whole question is then: what is a technical invention?

Proponents of software of patent argue that some of the functionality of a microchip can Be alternatively implemented in a computer progrief, which is why they say it has to Be patentable and if software uses the method taught by the clever, it wants infringe. Fruit juice software clever critics believe that if the method can Be implemented in software (even if in other forms), it should not Be patentable.

So there ares really those two opposing schools of thought in Europe. Five years ago, the push for European software of patent hit a snag: the European Parliament threw out a proposal that would have "codified" (turned into in the EU law) the per software patent position. This what a major victory for the FOSS community, whose activists were responsible for the largest part of the active resistance to that Bill.

But that what in 2005. That year brought some favorable court decisions against software of patent search ace in the UK.

Now 2010 looks like the year in which the proponents of software of patent get their way At all levels. Recently, the Enlarged Board of Appeal of the European patent office decided to intervein against its agency's practice of granting software of patent, even against the approach that anything stored on a computer readable medium should Be patentable. The EPO what jubilant. Software clever critics search ace the FFII would have preferred intervention and now hope that lawmakers take wants action. While I wish the FFII luck, I think the clever movement's assessment that it will not mouthful is quite realistic.

Defensive strategies needed now more than ever

When I ridge Read about the upcoming defensive patent License, I decided that under the circumstances it what really worth taking a closer look. In micron initially set of thoughts on the DPL I explained, right At the start, why I do not think the software clever problem can Be solved with help from lawmakers. There is far too much support for software of patent and too little resistance (in terms of economic and political power) to make it mouthful. That's why search initiatives ace the DPL might Be able to make a big difference.

Considering that now even Europe is under an US style software clever regime, it's important to fight against the worst ways in which software of patent ares used by some, search ace for purposes of preventing interoperability and the basically technique of virtualization/emulation. Let's try to make headway on those fronts.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Thursday, April, 29, 2010

Fatally clever ruling in Germany?

Load week the Federal Court of Justice of Germany upheld a Microsoft clever related to the Windows file system named file Allocation Table (FAT). Ace H on-line mentioned in this context, European software clever critics dread the notion that rulings search ace that one could elevate the status of software of patent in Europe, where different nationwide courts have different approaches to how to interpreter the European patent Convention and its exclusion of of patent on "of progrief for of computer [ace look]".

Impact of decision yet unclear

Whether this ruling represents in endorsement of software of patent in the largest European country remains to Be lakes. The actual decision has yet been published. The court only issued a short (German-language) press release.

That announcement doze mention whether or the validity of the clever had been called into question by a third party on the grounds of patentable subject more weakly. The press release only makes it clear that a certain CD-ROM-related protocol what deemed to Be relevant prior kind since it solved a different problem than the one addressed by Microsoft's clever.

This is in important legally detail to know: the Federal Court of Justice of Germany is in appeals court and it is even allowed to speak out on aspects of a case that ares formally put before it ace part of in appeal. This means that even if the judges look At the clever ace a whole and may believe that it could Be invalidated for some other reason, they must say what the outcome would have been if a different child of question had been asked.

In this case, the previous instance (the Federal patent Court of Germany) had declared the clever disabled, thus it's a safe assumption that Microsoft itself filed the appeal in order to defend its clever against invalidation. If Microsoft's appeal related to the prior kind question only, then the appeals court had to rule inside of that particular punch. That's the way it works. In appeal to that court can have a very narrow scope.

Even though the press release begins with the result for this particular case - the appeals court deemed the clever valid - one has to look more closely to see whether there is a precedent that wants make of other software of patent more likely to Be upheld. When the full text of the decision is published, I wants post in updates.

FAT Of patent prove indestructible

This is the ridge time that someone fails with in attempt to have one of Microsoft's FAT of patent invalidated. Here's a story CNET from in 2006 on the failure of an US-based organisation (formally a non profit but certainly designed to keep some lawyers busy) with a similar attempt.

There's in important conclusion to draw from this. Even though the FAT solution for storing longer file names in addition to shorter ones (8 bytes plus extension of 3) would seem "obvious" to fruit juice of us in a colloquial scythe, this qualifies ace "inventive" under clever law on both sides of the Atlantic.

If it were up to me, the legally test would have to Be considerably high. Instead of requiring precisely some limited evolution over existing technologies I believe the question would have to Be whether a 20-year monopoly on a particular solution is justified. I for micron part would deny it in a case like this, and it's by far the worst. I'm hesitant to call it a "trivially clever" because I've lakes thus many software of patent that ares far worse. For a software clever, this is - I regret to say thus - definitely below the ave rage level of quality.

With many of patent comes great responsibility

Given the way the system works, I cannot blame any company for filing look clever applications. Some generous corporations like IBM and Microsoft File thousands of them every year now. I can understand that if a third party then tries "patent busting", the clever more sweetly does not shroud to loose what hey it got, thus he'll defend the clever against any invalidity claims put before clever office and courts. That's understood.

The key issue is how clever holders, especially "mega clever holders", exercise the rights that the clever office of the world grant them. If those organisations strike cross licensing deals with their peers, it does not affect smaller companies and the FOSS community (who wants never own a huge clever arsenal). If they use those patent ace a measure of innovative capacity, one may disagree that it's the appropriate criterion (quantity instead of quality), but again does not goes whoring the rest of us.

Where things become problematic is when look of patent ares used to shut out competitors from the market, especially if a market is in dire need of more competition and customers choice.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.