4 ms·

It's worth mentioning that at least there are no Software Patents in Germany. See http://en.wikipedia.org/wiki/Software_patents_under_the_European_Patent_Conven

It's worth mentioning that at least there are no Software Patents in Germany. See http://en.wikipedia.org/wiki/Software_patents_under_the_European_Patent_Convention#Germany http://en.wikipedia.org/wiki/Software_patents_under_the_Euro...

rbehrends 15y ago
It's not quite that straightforward, alas. The 10th civil senate of the Federal Court of Justice (X. Zivilsenat des BGH) has, over the years, meandered back and forth regarding the patentability of software [1]. Currently, it's hewing pretty close to the EPO's criteria, which do allow a fair amount of what most people would consider software patents (though the criteria tend to still be a bit more restrictive than those of the USPTO). As in other European countries, an invention involving software must still be "technical", meaning that it must manipulate "controllable forces of nature" [2]. While that was originally interpreted fairly narrowly, starting with the BGH's "Dispositionsprogramm" decision, which pretty much ruled out anything that could run on a general purpose computer, recent interpretations of this "technicity criterion" have become far less restrictive. [1] http://en.swpat.org/wiki/Case_law_in_Germany http://en.swpat.org/wiki/Case_law_in_Germany [2] http://en.swpat.org/wiki/Controllable_forces_of_nature http://en.swpat.org/wiki/Controllable_forces_of_nature
- xxpor 15y ago
  Doesn't case law not really matter in Germany, since it's a civil law country?
  - aristidb 15y ago
    That is only partially true either. Where the laws are vague, the decisions of prominent courts fill in the gaps.
  - rbehrends 15y ago
    Civil law or not, courts still have (and need) the power to "legislate the gaps" (and similarly, statutes override case law even in common law countries). That has always been the case. The problem is that there are genuine inventions that do involve software, such as computer-controlled anti-lock braking systems. This has led to the widely accepted doctrine of only "computer programs as such" being exempted from patentability; what is being disputed is what "as such" means and when a software-based invention is more than just a computer program. As to the relevant statutes, the wording of section 1 of the German patent law (in agreement with article 52 of the European Patent Convention, which exempts "programs for computers") is that "programs for data processing devices" are not patentable, and the more recent BGH decisions really stretch the interpretation of the law to the breaking point of plausibility.

rbehrends 15y ago

It's not quite that straightforward, alas. The 10th civil senate of the Federal Court of Justice (X. Zivilsenat des BGH) has, over the years, meandered back and forth regarding the patentability of software [1]. Currently, it's hewing pretty close to the EPO's criteria, which do allow a fair amount of what most people would consider software patents (though the criteria tend to still be a bit more restrictive than those of the USPTO). As in other European countries, an invention involving software must still be "technical", meaning that it must manipulate "controllable forces of nature" [2]. While that was originally interpreted fairly narrowly, starting with the BGH's "Dispositionsprogramm" decision, which pretty much ruled out anything that could run on a general purpose computer, recent interpretations of this "technicity criterion" have become far less restrictive. [1] http://en.swpat.org/wiki/Case_law_in_Germany http://en.swpat.org/wiki/Case_law_in_Germany [2] http://en.swpat.org/wiki/Controllable_forces_of_nature http://en.swpat.org/wiki/Controllable_forces_of_nature

xxpor 15y ago
Doesn't case law not really matter in Germany, since it's a civil law country?
- aristidb 15y ago
  That is only partially true either. Where the laws are vague, the decisions of prominent courts fill in the gaps.
- rbehrends 15y ago
  Civil law or not, courts still have (and need) the power to "legislate the gaps" (and similarly, statutes override case law even in common law countries). That has always been the case. The problem is that there are genuine inventions that do involve software, such as computer-controlled anti-lock braking systems. This has led to the widely accepted doctrine of only "computer programs as such" being exempted from patentability; what is being disputed is what "as such" means and when a software-based invention is more than just a computer program. As to the relevant statutes, the wording of section 1 of the German patent law (in agreement with article 52 of the European Patent Convention, which exempts "programs for computers") is that "programs for data processing devices" are not patentable, and the more recent BGH decisions really stretch the interpretation of the law to the breaking point of plausibility.