Software is a broad term – it describes program code as well as algorithms but also computer-based or computer-involved techniques. Whether and, above all, when software is patentable, can be seen from a look at case law.
Software is not generally excluded from patent protection in Germany. The law only excludes software “as such” – this is formulated both in German patent law and in the wording of the European Patent Convention (EPC). This should prevent the patentability of a purely mathematical model of thought or pure program code. Because a patent claim always requires a technical component.
No general definition could be established for a technical invention. An invention is regarded as technical if it influences the real, physical world in some way that makes “forces of nature” controllable. Even technical considerations can give an invention its technical nature. This can be useful for a liberal opening for more patent protection of software inventions.
View into the jurisprudence of Germany
Software does not become patentable solely through storage on a storage medium. The German Patent Act excludes programs for data processing equipment as such from patent protection (Sec. 1 (3) No. 3 in conjunction with (4) Patent Law). Nevertheless, software is patentable under certain conditions, as a glance at the German case law on data transmission and processors shows.
Technical character of data transmission – BGH judgements 2004 to 2010
The claimed teaching must contain instructions which serve the solution of a concrete technical problem with technical means, the BGH already judged in 2004 (X ZB 34/03- Profitability assessment). The automatic data determination and transmission, however, do not give a claimed procedure any technical character in the sense of case law, the BGH added in this judgement.
With its judgement “Steuerungseinrichtung für Untersuchungsmodalitäten” (BGH, X ZB 22/07), the BGH continued this approach in 2009. For the technicality of a teaching in accordance with the invention, its embedding in a technical device was sufficient, the BGH ruled. The decisive factor for patenting is not the result of a weighting of technical and non-technical elements, but rather whether the teaching serves the solution of a concrete technical problem going beyond data processing in the required overall view.
The BGH was presented even more precisely in the judgment Glass Bottle Analyses (BGH, Xa ZR 4/07) of 2010. If a claim directed to an electronic messaging system contains instructions on how the required hardware must be configured – in particular a special memory and a distributor – then these two components constitute a hardware configuration that provides technicality, the Federal Supreme Court ruled.
Accordingly, it was recommended for some time that in to apply for a software or computer programs patent, the signals recorded by the detector should be evaluated using an electronic circuit – on the basis of which a decision level follows. However, it was already known in 2010 that this could also or better be done with a microprocessor.
Data Processing – Federal Patent Court judgement 2018
Such a patent claim may not be held too general either, as the judgement of the Federal Patent Court of June 2018 (BpatG, 18 W (pat) 12/16) shows “Control mechanism based on temporal behaviour information”. The patent application concerns a device, a method and a computer program product dealing with the timing of pipeline in a processor. In digital logic systems, an attempt is made to increase the operating frequency while simultaneously reducing power consumption, and the patent provides a solution to this problem.
The frequency and thus also the period in which the time behavior violations are counted should be changed dynamically if environmental conditions, such as temperature or voltage, change. The task was to adapt time behaviour margins in such a way that stable operation of a logic circuit is achieved.
However, the Federal Patent Court did not recognise the patent claim. When realizing the injury frequency, an expert will try to optimally adapt the length of the period to various boundary conditions and process parameters on the basis of the time behavior. In addition, a general method for the reliable recording of time behavior violations in a scanning window is available as a teaching tool, and the procedure formulated in the patent claim is therefore recommended to the expert. Therefore, the subject-matter of the patent claim is not patentable and is not based on an inventive step (§ 4 PatG).
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