(Mark: the ones original headlines incorrectly said "2010")
Germany's Federal High Court, the Federal Court of Justice, handed out a ruling that some say upholds a software cleverly. The ruling what published ace a PDF. I converted it to text here thus that we can use on-line translation of service to Read it in English. Below is the full text in German. Here of are on the left to automatic translations to English:
The swpat.org page about Germany contains background info and context.
FEDERAL COURT OF JUSTICE
X ZB 22/07
20Th of January, in 2009
in the appeal procedure
concerning the clever application 101 56 215.2-53
Reference book: yes
Control equipment for investigation modalities
PatG §1 section 1, section 3 No. 3, section 4
In any case when the procedure helping a data-processing system is embedded in the expiry of a technical equipment (ace for example with the setting of the definition of a Computertomografen), the result of a weighting of technical and non-technical of element doze decide on the patenting. It is authoritative rather whether the apprenticeship serves in case of the compulsory whole consideration of the solution of a concrete technical problem going out the data processing.
Federal Supreme Court, Beschl. v. 20Th of January, in 2009 – X ZB 22/07 – Bundespatentgericht
The X civil senates of the Federal Court of Justice has decided on the 20Th of January, in 2009 by the presiding judge Dr. Melulli ace wave ace the judges crowds, Dr. Lemke, village Asen and Gröning:
On the appeal of the Anmelderin the decision of the 17Th senates (Technical complaint senates) of the Bundespatentgerichts is lifted from the 17Th of April, 2007.
The thing is referred bake to the different-wide negotiations and decision to the Bundespatentgericht.
The value of the appeal procedure is settled on 25,000€.
1. I. A clever with the name "Procedure for the processing has submitted at the German patent office and brand office the Anmelderin medically of relevant data"; the office has rejected the registration. With the complaint has applied for the Anmelderin before the Bundespatentgericht – thus far for the appeal procedure of interest – to grant the clever with a clever claim being ace follows 1 which 14 other claims should join (2Nd auxiliary application):
“Procedures for the processing medically of relevant data within the scope of in investigation to Be coach reeds out of a patient, dadurchgekennzeichnet that progrief means stored in a data processing equipment select investigation modalities to Be coach reeds out on the base of given information specific for diagnosis and / or specific for symptom under use of a symptom based and / or diagnosis-based data bank one or several to the investigation of the patient who ares spent to a reproduction equipment and to a certain investigation modality one or several investigation protocols defining the investigation or measuring protocols ares selected by the data bank and ares spent and the investigation protocols or measuring protocols ares used by the data processing equipment to a data processing and / or control equipment of a well-chosen investigation modality, to the investigation of the patient, Be transferred, where they ares returned if necessary when required and / or ares used for the control of the investigation modality.”
2 The other auxiliary application 3 differs from preceding merely in the divergent version of the read claim 1 which is helped sentence of clever:
"… where they are returned and are used for the control of the investigation modality."
The complaint has rejected 3 The Bundespatentgericht. With the admitted appeal applies for the Anmelderin to lift this decision, ace far ace the registration with the clever claims from 1 to 15 has been rejected according to auxiliary application 2 or auxiliary application 3.
4 II. The appeal admissible by virtue of licensing allowed for the rest succeeds and leads to the Zurückverweisung of the thing to the Bundespatentgericht.
5 1. The Bundespatentgericht has represented the opinion, the registration has no invention lying in technical area i. S. from §1 PatG to the object. Ace far ace it concerns the right choice by investigation modalities (e.g., x-ray ex-Yank's nation, computer tomography, magnet resonance) and if necessary the suitable order of here use with a patient by progrief means At the risk of a symptom based and / or diagnosis-based data bank, the announced procedure to the exclusion of the clever protection of untercase anus §1 section 3 No. 3 PatG. No concrete technical problem formulation forms the base of the instruction that for every certain investigation modality one or several investigation protocols or measuring protocols should Be selected and Be spent. This instruction would Be determined, like the choice of the investigation modalities, by the intention to automate maggot weighing mentally decisions up to now from the doctor. The procedure is patentable on account of this instruction.
The procedure shows 6 beside theses non-technical points of view anus claim 1 in the version of auxiliary application 2 however technical points of view, namely, in any case, in this respect when by the progrief means in the data processing equipment ares transferred to well-chosen protocols to the investigation modalities and there from case to case to the direct control of the investigation modality ares used. Though this serves the solution of a concrete technical problem formulation, gereiche of the registration, nevertheless, so for the clever ability. The exclusion fact of the more weakly §1 doze take for the decision of the Federal Court of Justice "offering of interactive help" section 3 and 4 PatG though already when a concrete technical problem forms the base At leases of one part of the apprenticeship. However, anus other decisions a whole consideration is to Be done about what is in the foreground anus the claimed apprenticeship. This is the query process explained by the progrief means and decision-making process with the claimed procedure. If thesis and weighing mentally points of view falling bake on specialist knowledge were cancelled including expiries, aimed support of the doctor can Be realised neither by the Anmelderin anus the registration documents with the choice of the investigation modalities and investigation protocols, nor the setting of suitable device parametres in the modalities. The transference of the protocols to the data processing facilities of the investigation modalities is on the other hand a complementary measure of subordinated meaning. Hence, the procedure anuses the Main claim in the version of the auxiliary application 2 is able ace in invention i. S. from §1 section 1 PatG ares recognised.
7 2. Against this judgement the appeal turns successfully. With the grounds given by the clever court the exclusion of the registration cannot Be justified.
8 a) The object of the registration shows anus the statements grieved by the clever court in the version of the auxiliary applications 2 and 3 for the clever ability of a computer progrief or in object dressed in procedure claims of the processing according to data processing of procedure tap dances necessary Technizität (§1 section 1 PatG) if only for that because hey serves the processing, storage and transmission of data by means of a technical device.
9 Something else "logic verification" (BGHZ 143, 255) arises for the position of the Bundespatentgerichts from the senates decision. The aim of the whole consideration appealed there (aaO, p. 262 following) is alone whether – what of state present except quarrel – the programmes or procedure is embedded in a manner in a technical expiry which demonstrates the sign of the Technizität generally ace full. However, from it doze arise how the clever court seems to believe that Technizität may Be negated with a coexistence of technical and non-technical of element ace a result of a weighting.
10 is Unimportant for the Technizitätserfordernis whether the object of a registration, ace it is here the case anuses the grieved statements, so shows non-technical beside technical signs. The administration of justice being based on the thus core theory for the demarcation of the combinations capable of protection to which the clever court has appealed for B sharp contrary beginning (sen. Urt. v. 11.3.1986 – X ZR 65/85, GRUR 1986, 531 – flight costs minimisation), has been given up with the decision "diving computer" from the 4Th of February, in 1992 (BGHZ 117, 144) (cf. Benkard/Bacher/Melullis, PatG, 10Th ed., §1 PatG Rdn. 45B; of coach / Keukenschrijver, PatG, 6Th ed. §1 Rdn. 34). Whether combinations from technical and non-technical or from the clever protection to impossible signs ares able of clever in particular cases, section of slope in this respect – striking from the possibly appropriate exclusion facts of the more weakly §1. 3 PatG – only of it from whether they ares based on in inventive activity (cf. Benkard/Bacher/Melullis, aaO).
A registration which has a computer progrief or a procedure realised by software to the object, anus which must contain 11 b) anus the administration of justice of the senates for the clever ability indispensable Technizität the instructions decisive for procedure which have the solution of a concrete technical problem with technical means to the object. Because of the patenting exclusion of computer of progrief ace look (§1 section 3 No. 3 PatG) only look instructions ares able to found regularly the clever ability of a procedure which has a problem solution with look means to the object. Need the application of a computer progrief, but the solution of look a problem with the help of a (programmed) computer can entail before the background of the patenting ban a clever ability. This entails that in the check of novelty and inventive activity this problem solution is to Be taken in the look. Beyond the technology recumbent instructions ares enough in this connection basically; they more weakly only in the extent in which they have influence (sen on the solution of the technical problem with technical means., BGHZ 149, 68 – search of faulty sign of grove C; 159, 197 – electronic payments). Look in apprenticeship is able of protection rather only when the solution of the concrete technical problem is new and inventive.
12 , In any case, thus far the procedure announced here anuses choice of investigation modality and investigation protocols or measuring protocols the application of the respective investigation modality steers (for example, the setting of the definition with computer tomographies), it solves a technical problem concrete in this scythe. The progrief controlled setting of look device parametres leads, to the place of the manual setting by the operating staff kicking, a technical success here, to in application progrief to the supervision and regularisation of the expiry of a technical equipment (sen. Beschl. v. 13.05.1980 – X ZB 19/78 – anti-skid system) or for the processing of measuring results (sen., BGHZ 117, 144 – diving computer) is comparable (cf. to the protective ability of a X-ray equipment steered by to expiry programmes in the achievement of optimum ex-bottom sura with enough strain security of the X-ray tubes EPA GRUR Int. In 1988, 585).
13 3. The protective ability of the announced invention is here anuses all no question of the Technizität or the patenting exclusion, but the inventive activity which wants have to check the Bundespatentgericht now. Besides, could Be to Be come on the treated question up to now whether the registration anus the external-technical of process of the collection, Vomiting cherung, evaluation and use of data reveals a technical apprenticeship accessible to the clever protection and for their conversion, if this should Be the case whether location required the development of inventive activity, or whether this conversion to the specialist knowledge of the users leave remains.
The senates has judged 14 verbally negotiations for necessary.
Melullis crowds Lemke
Village Asen Gröning
Bundespatentgericht, decision from the 17.04.2007 – 17 W (pat) 6/04 –