The Federal Court of Justice (Federal Supreme Court) has indicated new possibilities for the patentability of software and procedures which are explained with the help of computers. In the quarrel about a patent application of Siemens on a "procedure to the dynamic generation of structured documents" with the German Patent Office with the number DE 10232674 the appeal authority has decided that also purely conceptual considerations can solve a technical problem under certain circumstances and are protective-worthy therefore in principle.
A procedure which concerns the immediate cooperation of the elements of a data processing system "is always of technical nature", one says in the decision published now Xa ZB 20/08 (PDF files) from the 22nd of April. Besides, it does not depend on it, "whether it is marked in the arrangement in which it is applied for a patent by technical instructions". On the appeal from Siemens the Federal Supreme Court has lifted thus the decision of the technical complaint senate of the Bundespatentgerichts from the 17th of January, 2008. The thing is referred back to the other negotiations and decision, also above the costs of the appeal, to the low authority.
The Patent Office had rejected ten claims of the registration submitted in 2002 first because of "absence of inventive activity". As a result Siemens lodged complaint. The group held in it the large part of the application unchanged and the patent claims 1 and 10 in revised form straight. The Bundespatentgericht rejected the desire to the renewed examination of the registration. To the grounds it swung a little further. Thus the judges stuck that with the claims a possibility should be created, structured, with calculator-readable instructions provided documents like files in the HTML format from the presentation documents which are written into language similar to script or similar to script like Java server Pages to generate dynamically also on such leading calculators whose too low efficiency does not admit the installation of entire script linguistic term surroundings like Java Virtual Machine.
For the solution of this problem teaches patent claim 1 that the 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. The instructions contained by the employees should be also illustrated extracted, on the limited specific instruction set of the interface module of the leading calculator and be explained under Hinzuziehung of the illustrated inquiry parametres in the term surroundings of the controlling module. This rich not from to give a commercial protective right.
The claimed apprenticeship must contain rather instructions which served the solution "of a concrete technical problem with technical means", considered the patent court. 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. With it the claim against §1 disowns the paragraph 3 of the patent law which excludes "programmes for data-processing systems" or software "when those" from the patentability just as article 52 of the European patent arrangement (EPÜ).
Siemens asserted in the complaint, 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. Computer programs are technical after the reason.
Now of this view the Federal Supreme Court joined, in principle. The court of appeal stressed first that the claimed "system" from leading calculator and client shows all together "a (complicated) data-processing system". Further it sticks under reference to the argumentative Federal Supreme Court decision to the patentability of a "control equipment for investigation modalities" from the last year that it is unimportant for the Technizitätserfordernis whether the object of a registration also shows non-technical beside technical signs and which of these signs stamped the claimed apprenticeship. Whether suitable combinations are able of patent, depends rather alone on whether they are new and are based on an inventive activity.
In the determining judgment passages one further says that "technical means for the solution of a technical problem not only" are given, "when device components are modified or are addressed basically aberrantly". It is also sufficient rather, "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. This condition would be fulfilled in this case.
The invention-appropriate apprenticeship concerns, the Federal Supreme Court agrees with the patent court, "the basic draught for the generation of dynamic documents". However, the justices of appeal further underline that the apprenticeship turns thus "to the system designer", 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, it is about the "application of technical means for the solution of the forming the basis technical problem". The fact that the apprenticeship would be limited not to concrete measures to the picture of the inquiry parametres on a restricted instruction set, but would be formulated rather in the abstract, however, shall be considered in the check still to be carried out by novelty and inventive activity. For the dynamic generation of static web pages the World Wide web Consortium (W3C) already in 2000 with standardization for XML and XSLT showed a way. There remains doubtful thus in spite of the announcement of the Federal Supreme Court whether Siemens still, nevertheless, receives the patent.
In the first reactions software patent opponents appeared disappointed from the decision. With it software is classified in Germany as indefinitely patentable, explained Patentblogger Florian Müller towards heise on-line. "Now under circumstances it will come to a flood of penetration complaints by patentees against so-called violators." Hartmut Pilch of the conveyor association for a free ulna of information infrastructure (FFII) stressed: "Where judge's right becomes wrongfully, the legislator is asked." Now "a jerk by the software branch must go and reach the Bundestag". (Stefan Krempl) /