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German High Court Declares All Software Patentable 330

Posted by StoneLion
from the bitter-patent-medicine dept.
FlorianMueller writes "Long gone are the times when Europe was that bastion of resistance against software patents and patents on such things as file systems were ruled invalid. In a decision published today, the Federal Court of Justice of Germany upheld a patent on the automatic generation of structured documents (such as XML/HTML) in a client-server setting. The ruling lays out general principles that go beyond the patent at stake: they tear down all barriers to software patentability in the largest EU member state, even though a European patent treaty has been adopted that was intended to exclude software from the scope of patentable subject matter. EU patent examiners recently warned against a drift toward software patents. Software patent critics in Europe fear this will spark more litigation on their continent and increasingly call for defensive measures."
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German High Court Declares All Software Patentable

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  • Time to go patent "Hello World" and get rich!

    • by mcvos (645701)

      I think there's some established prior art there.

      As for the automatic generation of structured documents, isn't there also tons of prior art there? How old is that patent? Isn't source code structured? Automatic code generation is quite ancient.

      • by Sique (173459)

        In this case it was about a special method to generate code on the fly for a computing limited device. Not the automatic code generation itself was patented, but a method to use scripts inside documents on a device whose processing capabilities didn't allow the installation of a full fledged script interpreter stack.

      • Re: (Score:3, Interesting)

        > Isn't source code structured? Automatic code generation is quite ancient.

        Yeh, but this patent is on doing that on a *limited resource* computer.

        Code generation might be decades old, but do you really think anyone thought of doing code generation on a computer with less then 2Gb of RAM and less than a 1Ghz processor in the 70s or 80s?

        Hat's off to Siemens for this stroke of genius.

    • by dkleinsc (563838)

      Or alternately, one step closer to this scenario [theonion.com].

    • by TheKidWho (705796)

      Well, "Hello World" happens to be one of the very first programs ever made and has plenty of prior art.

      IMHO one of the biggest problems with the patent system in regards to software and biomedical products is that those two areas of the industry are incredibly new, so many obvious/trivial advancements are patented right away. Give it some time when many of the obvious software patents and biomedical patents have entered the public domain and the system will work much better as it does for mechanical device

  • Noooooooo ! (Score:5, Insightful)

    by Yvanhoe (564877) on Thursday May 20, 2010 @10:48AM (#32279368) Journal
    There goes the possibility for small innovative company to develop in a safe legal framework. Let me phrase my sentiment, on behalf of all my European colleagues, and in the immortal words of Spider Jerusalem : FUCK FUCK FUCK FUCK FUCK FUCK FUCK FUCK FUCK
  • This patent idea is so ridiculus.

    IMO, something patentable is a thing. I can see a pair of new-design siccors. I can understand a gene or even biotech seed. But software is not a thing. It doesn't exist.

    #include<stdio.h>

    main()
    {
            printf("Hello Kai");
    }

    That is written. It is not a patenable process. Unless a (patented) processor interprests the code, it is only words.

    Is it copyrightable? Yes.

    If you make
    • Re: (Score:3, Funny)

      by Snarf You (1285360)

      If you make

      I think you

    • by cpghost (719344)

      Is it copyrightable? Yes.

      Isn't such a small "Hello Kai" too small to be copyrightable at all? Try to copyright a simple sentence a la "the quick brown fox jumped over the lazy dog." You'll notice that what constitutes a copyrightable work isn't so straightforward as one may naively think (and it varies greatly from legislation to legislation, despite the Bern Convention).

      • I do not think length matters. Take David McCord's poem "Epitaph on a Waiter". The poem is shorter than its title.

      • Well, the point wasn't that *my* example "hello world" code could be copyrighted. However, a standard program, with several hundred thousand lines of code, could be copyrighted.

        The point was that it is text and that it isn't something tangible other than the media upon which the text is being held. Even if you break it down into machine code, it is still text.
    • by Bakkster (1529253)

      This patent idea is so ridiculus. IMO, something patentable is a thing. I can see a pair of new-design siccors. I can understand a gene or even biotech seed. But software is not a thing. It doesn't exist.

      Your definition is, unfortunately, different then from the general term. Processes have almost always been patentable, and aren't, themselves, 'things'.

      The only difference then is if the process outputs something tangible (production process, gene patents) or not (algorithms, software).

      Personally, I don't think software patents are any more 'broken' than other patents. I just think that when the patent office grants a ridiculous software patent, it's more egregious than a ridiculous device patent. It se

  • by denis-The-menace (471988) on Thursday May 20, 2010 @10:52AM (#32279468)

    Time for a bunch of web sites to close up shop for a day to remind how this will affect things on the web.

    • by Joce640k (829181)

      Yep. If the summary is accurate then almost every site in the web would be illegal.

      Just because some geriatric judge liked the cut of a particular lawyer's suit.

  • when intellectual property law was meant to protect the solitary inventor from the predatory conglomerate. now the predatory conglomerate just preemptively carpet bombs their intellectual property territory and backs it up with a legion of lawyers. the solitary inventor doesn't stand a chance

    intellectual property law is defunct. it is philosophically bankrupt and must be replaced wholesale, ignored, or at least radically revamped. this applies to trademark, copyright, and patents: the whole lot of it is rotten to the core and betrays any noble principles it was ever meant to uphold

    • Re: (Score:3, Informative)

      by melikamp (631205)

      While you are right about patents and copyrights, none of our grievances have any relation to the trademark law, which is used to prevent scam. Richard Stallman is right: stop using the words "intellectual property", you have no clear understanding of what they mean, because they are not intended to have a clear meaning.

      • you have no clear understanding of what they mean, because they are not intended to have a clear meaning

        error in meaning process #4512: lack of internal logical coherence in statement detected. statement may be ironic, or speaker may be confused. abort, retry, fail?

        • by melikamp (631205)

          You are like a poster child for Stallman's rant about the evils of the term "IP". You are attacking the trademark law without realizing that it keeps you safe from Pepsi Cola that was made in your neighbor's bath tub. The only reason you are doing it is because you bought into the "IP" rhetoric. Throw your errors when you see people use the words "IP" to make an argument, not when they point out that "IP" is a useless umbrella term that only serves to confuse.

          • 2 stories before this one:

            http://idle.slashdot.org/article.pl?sid=10/05/20/1310248 [slashdot.org]

            seems pretty abusive, no?

            you and stallman fail because you assume trademark is the only weapon we have against the asshole selling bathtub bilge water as pepsi

            stallman is entitled to his opinion, but he's not some god you have to obey without thinking the issue out yourself. read his argument again and THINK (tm)

            k thx (tm)

            • by melikamp (631205)

              seems pretty abusive, no?

              No. May be it's because you forgot to present any kind of argument. Patents and copyrights distort free market by cementing monopolies. They put a tax on all production and dissemination of new ideas, while giving nothing in return to the public. I cannot substantiate the last claim, but neither can anyone prove that patents and copyrights increase innovation or production. Without proof either way, these laws should be considered useless and bad, because they do cost a lot to us, the public, to enforce. Th

        • by Tacvek (948259)

          error in meaning process #4512: lack of internal logical coherence in statement detected. statement may be ironic, or speaker may be confused. abort, retry, fail?

          The error is in your thinking. What the GP was saying: The term "Intellectual Property" intentionally has no clear meaning. Therefore it is not possible for there to exist a person with a clear understanding of the term, as to have a clear understanding requires the existence of a clear meaning.

          The argument is valid, but the two premises, namely that clear understanding requires a clear meaning, and that "Intellectual Property" intentionally has no clear meaning, may still be up for debate.

      • Though there are plenty of instances of stupidity in trademark laws as well. I almost fear that if software patents fall by the wayside, these same companies will start trademarking the look and feel all their software inventions.

    • by c++0xFF (1758032)

      Now the solitary inventor has a new strategy: try to sell a patent to the conglomerates for big $$$. Or sell it to a patent troll.

      In fact, patent trolls are the direct result of this switch. I dislike them as much as the next guy, but at least they're a force acting against those that are blatantly abusing their patents.

    • by lymond01 (314120)

      As long as there is money to be made, there will be attempts to change the rules to make money more easily.

      But I have a question: If you remove patents from software, that leaves you with what sort of licensing options? If I can find your source code, can I just rebrand your application and sell it like open source software? Can you apply a license like BSD, Apache, etc to it to prevent me, legally, from doing that even though your software idea isn't patented?

      I think patents, as you said, were to defend

    • by Peaker (72084)

      What's the problem with trademark laws?

    • Problem with Copyrights and Patent are not the fact that they wrong however their punishment for breaking is no longer just.
      Back in the old days Copyright Violators were really Corporations because in order to break the copyrights you needed an infrastructure to do this. So the fines for violations should be high, as someone made a lot of money with using someone elses IP without permission.

      However today it is too easy to violate Copyrights and Patents we no longer need a huge infrastructure to do such jus

    • Re: (Score:2, Insightful)

      Simply ignore patents. And if a lawyer appears trying to force you to accept them, kill the lawyer.
  • Boycott Germany (Score:5, Insightful)

    by H0p313ss (811249) on Thursday May 20, 2010 @11:03AM (#32279632)

    Start including a disclaimer in all license agreements, something to the effect of "This software may be in violation of German patent law and is therefore not available for use in that country"

    Refuse to sell or license any software to anyone in that country who is not willing to sign a disclosure stating that they are fully aware of the implications of German patent law and are responsible for any violations that may occur.

    Provide information for how to contact any German political organization that opposes software patents

    • Re: (Score:3, Insightful)

      by TheRaven64 (641858)
      Don't forget the USA and South Korea in that disclaimer. Something like the GPL, which has a clause preventing you from distributing the software if it is in violation of patents, already contains such a disclaimer. Given that any jurisdiction which allows software patents quickly tends towards a situation where any nontrivial piece of software is infringing several patents, it's now likely not to be legal to copy GPL'd software in Germany, either now or soon. Someone should probably mention this to Muni
    • Unfortunately, we don't elect our idiot judges. :(

    • Re: (Score:3, Insightful)

      It's always been my opinion that projects like xvid and x264 should have a "may not be distributed in the United States" (and now also Germany) in the license. For something like Linux and GCC you might have a case when you say "well there are patents, but they aren't being litigated so who knows if they are valid" but for MPEG some of the patents are known to be litigated and known to have been declared valid in court.

      Any copying being done for American (and now German) recipients for these projects is not

      • by mellon (7048)

        It really wouldn't help--if anything, it would make things worse. Right now it's forbidden fruit. If it were completely unavailable, people simply wouldn't know about it, and wouldn't know what they were missing. There just aren't enough programmers in any given country for them alone to be a force for preventing this sort of stupidity. You have to get the end-users on board too.

      • Re: (Score:3, Insightful)

        A better way would be to allow redistribution, but only if the redistributing party allows free use of any patents it owns for the code it is redistributing to anyone receiving that code, with a right to sublicense them further (so that they can in turn comply if they redistribute). But then you just get GPLv3.

  • I html-ised it and made links to a few automatic translations:

    It indeed looks like bad news.

    • by ciaran_o_riordan (662132) on Thursday May 20, 2010 @11:20AM (#32279904) Homepage

      I'm working on documenting this, and the general German situation, here:

      swpat.org is a publicly editable wiki, help welcome.

    • After a quick skimming of the document, I can only say that the /. headline is as overblown and out of context as always. The ruling is perfectly in line with the prior rulings of the BGH: An invention encompassing a computer program is technical in nature, if the program addresses a technical property or limitation of the computer it is intended to run on, or if the program is depended on or effecting a technical subject external to this computer. The range of patentable software in Germany has not changed
  • by mrpacmanjel (38218) on Thursday May 20, 2010 @11:13AM (#32279766)

    First you unleash an insane dictator over most of Europe, encourage David Hasselhoff to keep singing (why?), think bailing out the Euro is a "good thing", produce annoyingly reliable cars and now decide software is patentable.

    Thanks for nothing.

  • How to Fight This? (Score:5, Insightful)

    by aaaaaaargh! (1150173) on Thursday May 20, 2010 @11:16AM (#32279808)

    That's pretty shocking news to me as a German, because (naive as I am) I always considered the German High Court is halfway reasonable.

    Could we perhaps fight software patents by getting completely ridiculous and untenable patents accepted and afterwards make this public? -- This could have the desired effect but is probably never going to happen, because the whole patenting process is a bit expensive. :(

    In my opinion the whole idea that someone could dictate me what computational methods I use and sell is totally ridiculous. A lot of my work involves formal logic and methodology and I can't wait for the day when I'll publish a scientific paper that unbeknown to me infringes on some patent and then get sued for it. If this software patent idiocy continues, it will be impossible to teach any higher mathematics at university in 200 years from now without violating someone's patents, but I'm sure some companies already have licensing plans in the drawer for this scenario. Crazy...

    • by melikamp (631205)

      If this software patent idiocy continues, it will be impossible to teach any higher mathematics at university in 200 years from now without violating someone's patents

      That's 20 years. All the signs are pointing that way. I am a professional mathematician, and I've been following the developments, and it does not look good. The maths are clearly next. It only makes sense: if they can patent algorithms, then they can already patent math. As it stands, no one can patent "abstract" ideas. Watch and see them say: "Oh, we just realized, math ideas are not abstract, they are hella concrete, so we will be patenting them now". For lawyers this will be a trivial hurdle to overcome

      • by mellon (7048)

        What have you done to stop it? Do you know your representatives positions and voting histories on this issue?

        • by melikamp (631205)

          I am a citizen of Russian Federation. I'll start voting and caring in general when it actually makes a tiny bit of difference.

      • by mzs (595629)

        I too worry about this. I see so many of the interesting patents in software are simply: The naive approach is exponential. The greedy approach does not work. Let me throw dynamic programing/divide and conquer/linear programming at it, oh look the complexity is now tenable. Let me go and patent that. Any CS student after a good algorithms course could do this. Then there are all the patents that are cordic, fft, dct, numerical approximations, linear algebra, etc, textbook stuff.

    • No reason to panic - this is the usual /. patent propaganda machine running hot. The ruling is in line with the ruling practice of the BGH of the last 15 years at least. Nothing will change regarding software patents in Germany - they have always been possible, as long as the software in question deals with a technical matter within or external to the computer the software is running on.
  • shit, I think I have to puke now.

  • The Courts (Score:4, Insightful)

    by ObsessiveMathsFreak (773371) <obsessivemathsfreak.eircom@net> on Thursday May 20, 2010 @11:28AM (#32280004) Homepage Journal

    People need to understand that in most western countries, the judiciary is a kind of priesthood utterly divorced from reality or common sense. What matters to lawyers and judges are not concepts like "justice", "equity" or "reason". What matters to them is the written rule of the law, and how it is best spun into ways that benefit both the priesthood and its patrons--the wealthy and powerful. The courts have no interest in the effects of their judgements. They have interest only in which lawyers arguments were more pleasing in the eyes of legal dogma.

    This is a very, very serious problem which has only gotten worse in recent decades. The fact that most politicians are drawn from this clique has only accelerated the utter divorce of the courts from reality. Decisions like these are symptomatic of a judicial system that has broken down at a basic level. There are more across the legal spectrum: lenient corporate fines, excessive tort compensation, stringent libel fines, patents in general, children being convicted of child sex abuse, the rollback of habeas corpus, excess cost of legal defence, battery, etc, etc. The court system is entirely broken.

    We live in an age of the misrule of law. If things get any worse, we'll be better off with no legal system at all.

    • What I think many people miss is that legalese is a programming language. It is the way we structure society (which is a sort of massively parallel machine). In any program that receives tweaks from time to time, there comes a point where a complete rewrite is not only helpful, but necessary. We have reached that point in western countries. Long overdue in my opinion. Will it be easy? Hell no! But the alternative is to just watch things get even worse. Could things get worse? Certainly, but at least then we

    • Re:The Courts (Score:4, Interesting)

      by Kjella (173770) on Thursday May 20, 2010 @02:37PM (#32283036) Homepage

      People need to understand that in most western countries, the judiciary is a kind of priesthood utterly divorced from reality or common sense.

      Having read quite a few court cases in my years on slashdot, I would say they tend to be by far the most reasoned voices I've heard from any of the three branches of power. Very often you just get flaming insults with zero reading of the actual verdict.

      To take one example, I read a US Appeals court decision that upheld EULAs. I'm sure you can imagine the flame fest, they were retards who shouldn't have made it out of grade school. I read the verdict, and basically their main focus was if the same happened elsewhere, for example like buying a plane ticket over the phone - tons of terms and conditions apply but they're not all read over the phone. They listed many examples but I didn't memorize them, but they found that this was accepted practice many places, the customer had not been mislead, the terms were not unusual for the software and even the name said something like personal edition, the refund possibility was explicitly made clear and basically he just wanted to get out of the contract because if the "personal use" restriction of the EULA didn't apply he could make lots of money. Even I that am against EULAs had to agree he looked like a dirtbag and so the court said you walked into this with open eyes and we're not going to spring you.

      By the way, the "terms were not unusual" part was also the cause for another flame fest, the slashdot spin was like "if you expect to get screwed, it's okay to be screwed?!". Uh, yes in pretty much every case the court will look at what people normally get. If it's customary to sell a car with wheels then you'd better put it in the contract if there are no wheels, even though people would still call it a car without them. On the other hand if you still had some belongings in the glove compartment they'd naturally not be there. This is just common sense, and yet it became another reason to bash the courts.

      Another good example is the Grokster case. Basically the Appeals court granted summary motion like "No way you can be held guilty of anything". The Supreme court stepped in and said "Eh, if they can prove the defendants sold it like a tool to break the law and encouraged people to break the law, they might" and reversed it for regular trial. As a legal principle it made perfect sense, even if a gun is legal you can't go around selling it like a great murder weapon targeting people in bad divorces making overt suggestions. The question was if Grokster was guilty of anything like that but nothing was ever proven or sentenced because they folded and that was the end of it, but of course the courts got the blame. Even though the opposite would have been complete and utter nonsense.

      Your average court is usually fucked two ways, the laws as written and that they have to listen to every absurd legal theory a lawyer can come up with, giving them every possibility to have their day in court - see SCO. Just to take one of your examples, children convicted of child sex abuse, it's a problem that is entirely in law and should be fixed in law. How is it a judiciary problem that Congress didn't exclude self-molestation (lol at the term) from the law? What kind of legal basis would you like them to use, when there's not an ounce of unclarity in the law? You want them to just say "We don't like the rules, so we're changing them"? And in pretty much any story we get one person who think vigilantism from the jury bench should rewrite the law, because that won't lead to injustice because people hate the victim or love the perpetrator.

      By far some of the worst are those that would like the courts to invent some new standards of legal certainty or otherwise make it such an impossible process that people can't ever get convicted, as long as it works in favor of the side slashdot is cheering for. Most usually that involves petty copyright infringers who are never guilty even when they're caught

  • by s31523 (926314) on Thursday May 20, 2010 @11:34AM (#32280134)
    Even though TFA states "all software ideas are now potentially patentable as long as they are innovative from a purely formal point of view, meaning they're at least marginally different from how a technical problem was solved before", many standard design patterns used could be in trouble. For example implementing the well-known Observer pattern [wikipedia.org] using non-OO language constructs, in say Ada83, could be a patentable thing. I mean, this is really bad precedence here and something every software engineer, hell, every company should care about.
    • Even though TFA states "all software ideas are now potentially patentable as long as they are innovative from a purely formal point of view, meaning they're at least marginally different from how a technical problem was solved before", many standard design patterns used could be in trouble. For example implementing the well-known Observer pattern [wikipedia.org] using non-OO language constructs, in say Ada83, could be a patentable thing. I mean, this is really bad precedence here and something every software engineer, hell, every company should care about.

      Design patents are entirely different - they're on the non-functional aesthetic design of something, like a toy skunk [google.com] or underwear [google.com].

  • by C0vardeAn0nim0 (232451) on Thursday May 20, 2010 @11:42AM (#32280266) Journal

    seriously, we're going all the way downhill back to the dark age.

    it's censorship in australia, holding prisoners without charges in US and england, now with software patents, we'll see the resurgence of guilds.

    it'll be such a fucked up environment, that only those who are members of a certain guild will be able to make any products in certain field, and if a new entrepeneur tries to enter the market, the established guild will throw all the wheight of the legal system on the new guy.

    soon, access to information will be so restricted, that unless you're born in a certain class, you won't have any change of progress or innovating or "changing the world".

    when is the first ship to mars leaving ? i'm starting to think that a cold, desert planet with no breathable atmosphere is not such a bad idea after all.

  • Welcome to the fun....

  • "Long gone are the times when Europe was that bastion of resistance against software patents and patents on such things as file systems were ruled invalid.

    The rejection of the FAT patent was not because it was a software method, it was because it lacked an "inventive step". That's Europe's term for obviousness. Thus, it was ruled invalid as being obvious, not because it was not patentable subject matter.

  • Bugger
  • This means we need to block all dynamic content sites from loading in Germany (and from hosting such content in Germany as well)? I can handle that. (:

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