通告
04. June 2010
German Patent Law
On April 22, 2010 the German Federal Court of Justice (Bundesgerichtshof, BGH) issued the decision Xa ZB 20/08 – " Dynamic Document Generation" ("Dynamische Dokumentengenerierung"), regarding the patentability of computer programs under German law.
In this decision, the BGH affirmed the current approach, which has been applied since its decision X ZB 22/07 of January 20, 2009 – "Controlling device for examination modalities (Steuerungseinrichtung für Untersuchungsmodalitäten"), and holds that a method does not fall under the exclusion of Section 1, paragraphs (2) and (3) of the German patent law if it is concerned with the direct interaction of the elements of a data processing system (in the present decision a client-server system for the dynamic generation of structured documents). In this respect, the BGH decided that it does not matter whether the method, as included in a patent application and claimed, is characterized by technical steps.
This approach of the BGH in applying the exclusion of Section 1, paragraphs (2) and (3) of the German patent law is also fully in line with the approach taken with respect to Art. 52 (2) and (3) EPC by the Technical Boards of Appeal of the EPO following the decision T 258/03 – "Auction method/HITACHI". T 258/03 was recently confirmed by the Enlarged Board of Appeal in the opinion G 03/08, in relation to questions referred by the President of the EPO, Ms. Alison Brimelow, regarding the patentability of programs for computers. See our notice regarding G 03/08.
Thus, under the current German legal situation, the threshold for avoiding the exclusion from patentability of computer programs as such under Section 1, paragraphs (2) and (3) German patent law is rather low.
Accordingly, similar to the European approach, a method is not excluded from patent protection as a computer program as such, if the method solves a specific technical problem with technical means.
In this respect, the BGH decided that a solution with technical means is not limited to cases where machine components are modified or addressed in a fundamentally different way, which has been established case law since the decision of the BGH X ZB 13/88 dated June 11, 1991 - "Page buffer" ("Seitenpuffer").
Instead, the BGH stated that the exclusion from patent protection can also be overcome
- if the course of execution of the computer program which is used to solve the technical problem is determined by technical conditions outside the computer; and/or
- if the solution lies in the exact structure and composition of the computer program, taking into consideration the technical characteristics of the computer itself.
Accordingly, the BGH with its new decision, "Dynamic Document Generation", has broadened the understanding of what can be regarded as a technical solution of a technical problem, as a consequence broadening the extent of patentability for computer programs in Germany.
The full text of the decision Xa ZB 20/08 – "Dynamic Document Generation" ("Dynamische Dokumentengenerierung") of the German Federal Court of Justice, dated April 22, 2010, can be downloaded using the following link:
http://www.mueller-bore.de/tl_files/Decisions_BGH/Dynamic_Document_Generation.pdf
download Pdf