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08.08.11

US Moves Towards Limiting Software Patenting, Germany Remains Confused About EU Patent Laws

Posted in Europe, Patents at 3:35 am by Dr. Roy Schestowitz

Confusion

Summary: In Re Bilski continues to serve as a basis for invalidating some software patents, whereas in Germany, lack of clarify remains, despite the Federal Court getting involved

SOME weeks ago we saw new evidence that In Re Bilski still helped eliminate at least some software patents. This was not exactly unprecedented, but the cumulative evidence was new. Now there is this:

Lots of folks were upset with how the Supreme Court ruled so narrowly in the Bilski case and how they refused to make a clear statement on the patentability of software. It did seem clear that some judges didn’t believe that software should be patentable, and we were just discussing how the Supreme Court might still invalidate software patents, if given a good case on the subject. In the meantime, though, as a small silver lining, it does appear that the Bilski ruling has resulted in at least some software patents tossed.

This might be a step in the right direction, but it is far from enough. Meanwhile, in Europe for example, some software patents mistakenly get approved (Microsoft's FAT in Germany for instance), which requires clarifications that arrive from the Federal Court. The patent lawyers rave about being able to patent software, linking to conclusions from biased interpretations like this one:

By this decision, the German two-stage approach to examination patent-eligibility of software-related inventions can be considered as established. Even though it resembles the corresponding EPO approach, it is not identical with it, since above step 2 (solving a technical problem by technical means, § 1 III, IV PatG) represents an additional step as compared to the EPO approach. Step 2 is, like step 1, an a-priori step not considering prior art. It thus represents a kind of coarse screening (“Grobsichtung”) to enable that only such claims are examined as to their novelty/inventiveness (above step 3) that go beyond trivial technical features.

This difference between the German and the EPO approaches might be best illustrated by the fact that a pure business method implemented on a conventional computer or computer network would in Germany be excluded as a “computer program as such” without even considering prior art, while the EPO would rejected this method for lack of inventive step since its differences over prior art only involve non-technical features.

In Germany, applicants of software-implemented methods will now be on the safe side as regards technicality issues, if the invention is claimed within an embedded system framework, i.e. as a method controlling a technical apparatus or collecting, evaluating and processing (technical) data by means of a technical apparatus.

The recent development of case law in Germany is to be considered positive for applicants of software inventions, as it overcomes the earlier investigation of the individual case and thus creates legal certainty due to an easier-to-understand and thus easier-to-adopt examination systematics.

This is what they would hope. The source has a financial agenda. The H says that “Siemens had asked the German Patent Office for patent protection (DE 101 15 895 C1) for a method of displaying a recognition feature for previously visited web sites. For deep links leading to other web sites to be depicted, users would first have to be registered on the online information site visited. The patent application refers to a client program that accesses cookies set by the server.” Can the EU authorities step up and remind Germany that patents “as such” are verboten?

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