The below is the text, and on the left to machine translations to English, of a recent German court ruling that seems to uphold software of clever.
The The the Main value of text versions is that we can use on-line of translator to get in approximate English translation.
- Google's English translation
- Yahoo's Babelfish English translation
- on-line translator.com's English translation
- The ruling, in German (PDF)
- Analysis by Florian Müller: German high court declares all software potentially patentable
- from en.swpat.org/wiki:
FEDERAL COURT OF JUSTICE
Xa ZB 20/08
22Nd of April, 2010
in the appeal thing
concerning the clever application DE 102 32 674.6-53
Reference book: yes
Dynamic document generation
PatG §1 section 1, section 3 No. 3, section 4
a) A procedure, the immediate cooperation of the element of a data processing system (here: of a server with a client concerns to the dynamic generation of structured documents), is always of technical nature, without it would depend on whether it is marked in the arrangement in which it is applied for a clever by technical instructions.
b) Look a procedure is excluded ace a programmes for data-processing of system from the clever protection if it solves a concrete technical problem with technical means. A solution with technical means is given only when system components ares modified or ares addressed in new manner. It is sufficient rather, if the expiry of a data processing programmes which is used for the solution of the problem, is determined by technical circumstances beyond the data-processing system or if the solution precisely consists in decorating a data processing programmes in look a way that it shows consideration for the technical circumstances of the data-processing system.
Federal Supreme Court, decision from the 22Nd of April, 2010 – Xa ZB 20/08 – Bundespatentgericht
The Xa-civil senates of the Federal Court of Justice has decided on the 22Nd of April, 2010 by the judges Prof. Dr. Meier's Baker and Keukenschrijver, judge mills and the judges Dr. Bacher and Hoffmann:
On the appeal of the Anmelderin the decision of the 17Th senates (Technical complaint senates) of the Bundespatentgerichts is lifted from the 17Th of January, in 2008.
The thing is referred bake to different-wide negotiations and decision, so above the costs of the appeal, to the Bundespatentgericht.
The value of the object of the appeal procedure is settled on 25,000 EUR.
I. The German clever office and fire office has rejected to ten clever claims comprehensive, in 2002 submitted clever application 102 32 674 with the name "Procedure to the dynamic generation of structured documents" because of absence of inventive activity. Against this the complaint has inserted the Anmelderin with which she has followed up clever claim 1 the in the following returned, changed version and the clever claims from 2 to 9 consistently, but in bake respect on the changed clever claim 1:
“1Saint procedure to the dynamic generation of structured documents (SD) in At leases to one with a client (CENTILITRE) to communicating, in B sharp resources limited, microcontroller-based Lea's thing calculator (SRV), extensively the tap dances:
Receipt of requirement data (REQ) of the client (CENTILITRE) in the Lea's thing calculator (SRV),
Extraction of inquiry parametres from the requirement data (REQ),
Picture of the inquiry parametres by a controlling modules (CRT) on in instruction set of a softwarearchitekturspezifischen interface modules (IF) of the Lea's thing calculator (SRV),
dynamic generation of the structured document (SD) under use At leases of one presentation document (TD) with contained calls of employees (JB) and instructions of the employee (JB) ares extracted by the interface modules (IF) and ares illustrated on a corresponding, on a cutting of the employees limited instruction set of the interface modules (IF),
which ares explained under Hinzuziehung of the illustrated inquiry parametres in term surroundings of the controlling modules (CRT) and define anuses occurred implementation contents and / or structure of the structured document (SD),
Transmission of the dynamically generated structured document (SD) to the client (CENTILITRE).”
Patent claim 10 has followed up them in the following version:
“10Th system for the realisation of the procedure anuses one of the preceding claims.”
The clever court has rejected the complaint; B sharp decision is published in CR in 2008, 626. It has admitted the appeal.
II. The appeal is admissible by virtue of licensing and is inserted efficiently. In the thing she leads to the abolition of the contested decision and to the Zurückverweisung of the thing to the clever court (§108 section 1 PatG).
1. The clever application underlying to the appeal concerns anus here clever claim 1 a procedure to the dynamic generation of structured documents,
- (1) In At leases one microcontroller-based Lea's thing calculator
it is coach reeds out,
- (1.1) In B sharp resources is limited and
- (1.2) Communicates with a client,
- (2) With the following procedure tap dances:
- (2.1) Requirement data of the client wants conceive in the Lea's thing calculator,
- (2.2) From the requirement data inquiry parametres ares extracted,
- (2.3) The inquiry parametres ares illustrated by a controlling modules on in instruction set of in interface modules of the Lea's thing calculator,
- And the interface modules softwarearchitekturspezifisch is,
- (2.4) The structured document is dynamically generated
- (2.4.1) under use At leases of one presentation document with contained calls of employees,
- (2.5) Besides, instructions of the employees ares extracted by the interface modules and ares illustrated on a corresponding instruction set of the interface modules,
- And the instruction set is limited to a cutting of the employees,
- (2.6) The instructions
- (2.6.1) ares explained under Hinzuziehung of the illustrated inquiry parametres in term surroundings of the controlling modules and
- (2.6.2) define anuses occurred implementation contents and / or structure of the structured document,
- (2.7) The dynamically generated structured document is transmitted to the client.
2. The clever court has explained, with the registration a procedure should Be given which allows a generation of structured documents with dynamic contents and / or dynamic structure and a Portierung of the presentation documents should Be possible between resource restricted Lea's thing calculators or of server and Lea's thing calculators with enough resources in in easily manner. It should Be created consequently a possibility, structured documents (i.e. the documents which contained calculator-readable instructions about structure and representation beside the information to Be shown, ace documents ares written in the HTML format) from presentation documents, which in Script-or scriptähnlichen language like Java server Pages to genetic rate dynamically on search Lea's thing calculators whose too low efficiency doze admit the installation of entire Scriptsprachen-term surroundings.
For the solution of this problem teaches clever claim 1 that the Lea's thing calculator (server) from the requirement data extracts the inquiry parametres for a document and illustrates this by a controlling modules on the instruction set of the Lea's thing calculator. By the picture is to Be understood that the parametres would Be moved in for the interface modules of the Lea's thing calculator understandable orders or would Be ignored. With the (remaining) requirement data it is accessed in the Lea's thing calculator a suitable presentation document with in this contained call of employees. The instructions contained by the employees should Be illustrated extracted, on limited spezi fish instruction set of the interface modules of the Lea's thing calculator and under Hinzuziehung of the illustrated inquiry parametres in the term surroundings of the controlling modules, i.e. without insertion of entire Scriptsprachen-term surroundings, Be explained. In this manner the requested document can Be dynamically generated and Be transmitted to the client, without on the Lea's thing calculator complicated, comprehensive term surroundings must Be installed for a Scriptsprache like "Java Virtual Machine".
This revealed – workable – procedure anuses clever claim 1 doze lie in technical area. The apprenticeship of the quarrel clever of passport to make written documents on a Lea's thing calculator of low efficiency thereby processable in a Scriptsprache that a limited cutting is moved by instructions of the Scriptsprache without Scriptsprachen-term surroundings directly in the instruction set of the interface modules of the Lea's thing calculator. Though this concerns no concrete result by working tap dances which ares determined for the implementation by a data-processing system, but, hence, the BASIC draught for the generation of dynamic documents and would Be excluded probably ace a programmes for a data-processing system “ace look” from the clever protection. However, a procedure which helps itself to the causation of the aimed success of a programmes is accessible anuses the administration of justice of the Federal Court of Justice already because of the electronic data processing to the clever protection; the claimed apprenticeship must contain rather instructions which served the solution of a concrete technical problem with technical means. Though the claimed apprenticeship of the solution of a (basically) technical problem may serve, ace far ace she tries to compensate for the different efficiency of Lea's thing calculators by a certain manner of the production of documents. However, this is caused by the application of technical means, but is based on conceptual considerations. The besides presumed application of data processing means doze lead anus of höchstrichterlicher administration of justice yet to the fact that the apprenticeship to the clever protection is accessible. To reach to the proposal of the clever application, no concrete technical knowledge is necessary anus customary technology understanding, because a certain internal approach of the Lea's thing calculator is accepted ace given.
Concerning the clever claim 10 no other assessment arises. With this claim which refers to the procedure signs of stress the Anmelderin merely the concrete character for the implementation of the procedure of used data processing system, concrete signs, nevertheless, already of the apprenticeship of the clever claim 1 puts under have become.
3. The appeal asserts, computer and their programming belonged to the area of the technology. The negation of the Technizität of computer of progrief is a fiction covered by the reality. Article. 27 paragraphs 1 of the trip arrangement orders the granting of of patent for inventions in all areas of the technology. The exclusion intended in the clever law for “computer of progrief ace those "is able only with article. 27 of the trip arrangement are compatible if under it a non-technical object is to be understood. Because computer programs are technical, however, by Se, a contradiction can be avoided to the trip arrangement only if there were non-technical" computers of progrief ace those ". To him stands in the way meanwhile that computer programs are technical after the reason. A way out can be found only if a" stands in character" with technical and non-technical qualities is awarded all computer of progrief. The technical qualities ares to Be lakes here in the control of the computers like in all other technical effects which would Be caused by progrief controlled of computer by the implementation of the programme, non-technical in the textual aspects. The present administration of justice of the Federal Court of Justice has grasped two of child of obviously technical instructions for the computers control, namely the computers compatible instructions which solved though a technical problem the clever claim, however, did stamp, ace wave ace computer compatible instructions which ares stamping for the clever claim, but no technical problem solved.
4. Of the apprenticeship for which the clever application claims protection in invention for the purposes of §1 concerns section 1 PatG (in since the version to Be applied 13.12.2007) and section 3 No. 3 PatG is excluded anus §1 from the clever protection.
a) The apprenticeship for which the Anmelderin protection claim concerns the immediate cooperation of several of element of a data-processing system, namely – for example, by limited the Main memory capacity (Beschr. Section 6, 7) – in B sharp efficiency of limited Lea's thing calculator (server; SRV) which shows in interface modules (interface, IF), sends with a client (CENTILITRE), which demands for the Lea's thing calculator and receives from the Lea's thing calculator anforderungsgemäß dynamically generated structured documents. With it 10 claimed of "system" from Lea's thing calculator and client a totally of one (complicated) data-processing system shows in clever claim 1 presumed and with clever claim whose effectiveness can Be affected by the limited resources of the Lea's thing calculator.
The problem underlying to the registration (cf. Beschr arises from this interference. To provide section 16), a procedure which enables to genetic rate one structured document requested by the client on Lea's thing calculators with limited resources dynamically (and to transmit the thus generated document then to the client).
In addition inquiry parametres ares extracted from the requirement data received by the client (sign 2.2) and by a "controlling modules "of the server on an instruction set of a softwarearchitekturspezifischen interface module illustrated (signs 2.3, 2.3.1). Under is as the description explains (paragraph 18) to understand that substitutes for the requirement parametres with orders understandable for the interface module - or also ignored - become. Under use at least of one presentation document a structured document corresponding to the requirement data is generated then (sign 2.4). The presentation document contains one or several employees (sign 2.4.1), i.e. dynamic calls of objects or Java components (" Java Beans") which ares integrated together with static components ace for example to HTML expressions into a common document which shows, for example, the structure of a Java server side (Java server Pages). The instructions contained in the presentation document can Be processed by means of term surroundings installed on the Lea's thing calculator – in the case by Java server Pages the thus Servlet engine to the conversion of the servers sides and thus Java Virtual Machine (JVM) for the implementation of the Java code. On this occasion, originates a dynamically generated structured document, for example, a HTML document with the requested contents which is transmitted to the client (cf. Beschr. Section 12 to 2). Anus the apprenticeship of the clever application the instructions of the employee ("Java Beans") ares extracted by in interface modules available on the Lea's thing calculator, limited to a corresponding – (sign 2.5.1) – instruction set illustrated (sign 2.5) and in term surroundings of the controlling modules arranged on a Lea's thing calculator explained (sign 2.6.1). The picture can Be formed, ace the description explains, very much simplisticly, while she limits herself, for example, to a small cutting of the JavaBeans syntax (section 43). This enables to move Java servers sides on a calculator on which no Java Virtual Machine is installed, but conformist term surroundings which need less computing capacity or storage space. Ace in advantage of this procedure it is given in the clever application that a presentation document for example being in the form of a Java server side can Be pulled up in a Lea's thing calculator with restricted resources ace wave ace in a better equipped Lea's thing calculator for the dynamic generation of structured documents, thus no different presentation documents for both calculator types must Be developed (section 19). Restrictions can arise from the fact that the interface modules of the Lea's thing calculator restricted in B sharp resources shows only one limited instruction set and cannot move, therefore, precisely like that all instructions contained in the presentation document in the seed manner like a better equipped Lea's thing calculator.
b) With it is given anus the administration of justice of the Federal Court of Justice a technical apprenticeship which is accessible ace in invention basically to the clever protection.
The Federal Court of Justice has decided already in 1991 that a programme-related apprenticeship is technical if it concerns the effectiveness of a data-processing system ace those and allows with it the immediate cooperation of here of element (BGHZ 115, 11 – side buffers). Hey has looked At the effectiveness of the data-processing system in the disputes At that time in thus far ace affected when it allows the invention-appropriate apprenticeship to pursue the data-processing system under better exploitation of the Main memory and with shorter memory access times (BGHZ 115, 11, 21). Hey has explained this with the fact that the announced apprenticeship concerns a procedure which of passport touching memory (side buffers) in the capture and storage of the information about the topical storage area of in arithmetic process running out of vision in a data-processing system and in a certain loading strategy for to the preferential access to being defeated, but only one choice of memory sides. This procedure concerns the effectiveness of the data-processing system ace those, because it contains the instruction to use the element of a data-processing system At the company immediately in certain way (BGHZ 115, 11, 22).
The clever court has lakes in the grounds which there have been for the licensing of the appeal the difference to the disputes in the fact that the invention deals in the case "side buffers" with the internal approach of a data-processing system which of state for itself ace a technical device in the centre of the consideration. Accordingly (basically) variations of this approach have been valued in technical regard ace the clever protection accessibly, even if they have been caused without change only of the hardware structure by a progrief modification. To reach, nevertheless, to the claimed apprenticeship, technical specialist knowledge and a discussion with the concrete assemblies and functional expiries have been necessary in the data-processing system, while in the disputes have accepted the approach of the servers ace given and on grounds of conceptual considerations for the processing of data the application of certain software of module is suggested.
This differentiation leans upon the decision "Chinese characters" (BGHZ 115, 23). In this the Federal Court of Justice has looked At the applied for a clever procedure to the input of Chinese signs in text of system which intended a totally of one certain memory addressing for the saving of storage space, for the reduction of the access time and for the rise of the speed of the processing process ace a technical apprenticeship because the procedure doze concern the effectiveness of the data-processing system ace those in contrast to the case "side buffers"; the concrete signs of the data-processing system would give to the claimed apprenticeship the determining Gepräge which of state with the mentally measures of the Ordnens of the processed data and if (BGHZ 115, 23, 31).
Nevertheless, for the Technizitätserfordernis it is, how the X civil senates of the Federal Court of Justice in the decision "a control equipment for investigation modalities" (Beschl. v. 20.1.2009 – X ZB 22/07, GRUR 2009, 479) has clarified, unimportant whether the object of a registration shows non-technical beside technical signs and which of thesis signs stamp the claimed apprenticeship. Whether combinations from technical and non-technical or from the clever protection to impossible signs ares able of clever in particular cases, section 3 PatG – only of slope rather – striking from the possibly appropriate exclusion facts of the more weakly §1 of it from whether they ares new and ares based on in inventive activity (Federal Supreme Court GRUR in 2009, 479 Tz. 10 m.w. N.) . Therefore, technical character comes up precisely like that to a device (data-processing system) which is program technically furnished in certain manner, even if the device erfindungsgemäß of the text Treatment serves (BGHZ 144, 282 – linguistic analysis equipment). Nothing else can Be valid in the disputes for with clever claim 10 claimed of system which exists of calculators on which with clever claim 1 claimed procedures can Be explained to the dynamic generation of structured documents.
Because it is unimportant which signs stamp the apprenticeship announced for the clever protection, it doze depend meanwhile with a procedure claim for the Technizitätserfordernis on whether the invention teaches (basically) variations of the approach of the components of a data-processing system. It is enough rather that she teaches the use of look components and gives with it in instruction to the technical action (Federal Supreme Court GRUR in 2009, 479 Tz. 8 – control equipment for investigation modalities; sen. Urt. V. 2/4/2010 – Xa ZR 4/07 Tz. 20 – glass bottle analysis system, for the publication intended). So clever claim 1 contains with it a technical apprenticeship basically accessible to the clever protection.
c) The applied for a clever technical apprenticeship is excluded ace a programmes for data-processing of system from the clever protection.
aa) anus the strengthened administration of justice of the Federal Court of Justice must contain a registration which has a computer progrief or a procedure achieved by a data processing programmes to the object anus the Technizität indispensable for the clever ability 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 of grove C; BGHZ 159, 197, 204 – electronic payments; BGHZ 166, 305 Tz. 17 – prepaid telephones calls; Federal Supreme Court GRUR in 2009, 479 Tz. 11 – control equipment for investigation modalities). Because of the patenting exclusion for computer of progrief ace those (§1 section 3 No. 3, section 4 PatG) only look instructions ares able to found regularly the clever ability of a procedure which have a problem solution with look means to the object. Need the application of a computer progrief, but the solution of a technical problem with the help of a (programmed) calculator can entail before the background of the patenting ban a clever ability.
This has to the other result that in the check of novelty and inventive activity the solution of the technical problem is to Be taken in the look. A programme-related apprenticeship is able of protection only if the solution of the concrete technical problem is new and is based on inventive activity. Beyond the technology recumbent instructions ares enough in this connection basically; they more weakly only in the extent in which they have influence (BGHZ 159, 197, 205 following – electronic payments on the solution of the technical problem with technical means; Federal Supreme Court, Beschl. v. 19.10.2004 – X ZB 34/03, GRUR 2005, 143, 144 – profitability inquiry; Federal Supreme Court GRUR in 2009, 479 Tz. 11 – control equipment for investigation modalities).
Only in view of this check of the inventive activity can win, ace the Federal Court of Justice has already clarified (BGHZ 159 aaO), the question meaning, "stamp" to what extent the technical solution of element the invention. However, is able – against the view of the appeal – from the decision "search of faulty sign chains" (BGHZ 149, 68) ares derived, only one clever claim stamping technical instructions ares suitable to overcome the patenting exclusion (cf. Federal Supreme Court, Beschl. v. 19.10.2004 – X ZB 33/03, GRUR 2005, 141, 142 – Offer to interactive help; EPA, Entsch. v. 21.4.2004 – T 258/03 – 3.5.1, ABl. EPA 2004, 575 = GRUR Int. In 2005, 332, 333 – auction procedure / Hitachi).
bb) The clever court has appropriately explained that a technical problem forms the base of the invention, because it is enabled by them to genetic rate dynamically requested structured documents on Lea's thing calculators from the client which Th order Virtual Machine necessary or desirable computing capacity about for the application of rather demanding term surroundings ace for example of Java. With it the functionality of a communication system is concerned with the better exploitation of restricted resources of a server with the dynamic generation of structured documents and consequently a concrete technical problem and about one aim lying beyond the technology (cf. moreover BGHZ 159, 197, 206 – electronic payments; Federal Supreme Court GRUR in 2005, 141, 142 – Offer to interactive help; Federal Supreme Court GRUR in 2005, 143, 144 – profitability inquiry; sen. Urt. v. 30.7.2009 - Xa ZR 22/06, GRUR 2010, 44 – Dreinahtschlauchfolienbeutel) appealed.
cc) The clever court has meant, the invention-appropriate success is caused with technical means because hey is based on conceptual considerations which flowed into the proposal, a certain software Modules to flat and to optimise in this manner the software close to system. Of this judgement can become joined.
Technical means for the solution of a technical problem ares given only when device components ares modified or ares addressed basically aberrantly. It is sufficient rather, if the expiry of a data processing programmes which is used for the solution of the problem, is determined by technical circumstances beyond the data-processing system or if the solution precisely consists in decorating a data processing programmes in look a way that it shows consideration for the technical circumstances of the data-processing system. The At read called condition is fulfilled in this case. The invention-appropriate apprenticeship concerns ace the clever court has ascertained legal perfectly, the BASIC draught for the generation of dynamic documents. Therefore, she is directed At the programmer, but At the system designer who 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. Precisely, therefore, she concerns the application of technical means for the solution of the forming the base technical problem. The fact that the apprenticeship is limited to concrete measures to the picture of the inquiry parametres on a restricted instruction set, but is formulated rather in the abstract, shall Be considered in the check quietly to Be coach reeds out by novelty and inventive activity.
5. The thing is to Be referred bake therefore to the check of the other demands for the clever ability of in invention to the clever court.
III. The senates has looked At verbally negotiations ace necessary.
Meier Baker Keukenschrijver Mühlens
Bundespatentgericht, decision from the 17.01.2008 – 17 W (pat) 71/04 –