German High Court Declares All Software Patentable 330
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."
Re:Is it possible (Score:3, Informative)
It probably is, however, it might already be patented in Austria since that's where the Wiener Schnitzel was invented. Also the Wiener sausage.
Wien is the capital of Austria. It's called Vienna in English.
Re:there once was a time (Score:3, Informative)
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.
More info on swpat.org (Score:5, Informative)
I'm working on documenting this, and the general German situation, here:
swpat.org is a publicly editable wiki, help welcome.
Re:Does it make a difference (Score:1, Informative)
European Patent Convention Article 52:
"Article 52
Patentable inventions
(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.
(3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such."
http://www.epo.org/patents/law/legal-texts/html/epc/2000/e/ar52.html
Re:Is it possible (Score:3, Informative)
Not quite, but almost. From the Wikipedia article [wikipedia.org] about it:
"In Austria, the term Wiener Schnitzel is protected by law, and any schnitzel called by that name has to be made from veal."
While not a patent per se, there are certain things called by a certain region or town that either have to be made in this town or by some specific process. You cannot really get any Champagne in Europe that wasn't made in the region of Champagne. But this is essentially more due to the PDO [wikipedia.org] regulation rather than a patent itself.
Re:Boycott Germany (Score:5, Informative)
Re:Does it make a difference (Score:3, Informative)
Software is purely composed of schemes and rules. I'm sorry, but every comment you've made in this thread implies that you don't understand the mathematical underpinnings of software. Software is mathematics. Period. Full stop. U.S. patents on math and "abstract concepts" are specifically forbidden. A programming language is formal symbolic language in which mathematical theorems are written, which just happen to have a translation to a physical machine which can perform these operations for us. And yes, this description applies to C and C++ too.
If you want to patent a physical invention of which software forms a part, fine, as long as the physical component is sufficiently novel. You cannot patent the software algorithms themselves, and sticking "A hardware appliance comprising of a CPU and volatile or non-volatile storage, and..." does not circumvent that, because that CPU is a general purpose device that can run any specific type of software.
The fact that you have written software such that the CPU does what you want does not suddenly make that configuration patentable, because that hardware is just following a recipe, and abstract formula for achieving results from a set of inputs. In other words, that machine is just doing math for you.
Now you can talk about revising the patent criteria to include certain types of math, and that's a whole separate debate, but at least acknowledge it for what it is. Stop being coy and evasive. I'm speaking to all pro-software patent people here, not you specifically AbbeyRoad.
Re:Down the rabbit hole (Score:3, Informative)
Talk about missing the point. Firstly, if patents are supposed to encourage innovation, why introduce them into the software market where innovation is happening at a breakneck pace? Do you really think the legal process you just described will hasten the pace of software development?
Secondly, the economics of software and physical innovations are multiple orders of magnitude different. Suffice it to say that when you can design, construct and ship near infinite units of a physical good that cost you a total of $10,000 in equipment and time, then I'll acknowledge that physical goods and software are even remotely comparable and require the same protections to recoup R&D investments.
Thirdly, software is mathematics which is not patentable anywhere. Your attempted circumventions by tying an algorithm to a general purpose machine is ludicrous, because I can just as easily write my mathematical proof in a theorem prover instead of on paper. The proof can then be checked and executed on a machine, which by your reasoning makes it patentable, thus contradicting the idea that math is not patentable.
I'm sorry, but IMO pro-software patent people are deeply ignorant of the nature of software and mathematics. They want to prevent patenting math but allow patenting software, and they don't even realize these two goals are mutually contradictory. As I said above [slashdot.org], if you want to patent software then you have to open a debate about patenting certain types of math. Don't pussyfoot around the issue, because that's dishonest.
Re:Hello World (Score:2, Informative)
Re:Please provide sample claim on 'software as suc (Score:3, Informative)
Where did the decision waive the requirement of a technical nature of the inventive step? Paragraph 27 states that technical means for solving a technical problem are existent, if the workings of a program are "determined by technical conditions outside of the data processing system" or if "the program considers technical conditions within the data processing system" - the latter being the reason for the decision. This is in line with "Seitenpuffer", for example.
As for a claim of a program "as such" - I would offer a process claim dealing with a plain, abstract algorithm. Just imagine a "Process for performing the Sieve of Erathosthenes algorithm." - you can derive a full claim from that yourself, the steps of the algorithm are known. The claim contains no technical attribute, and therefore is not patentable under 1 - compare paragraph 19 of the decision. It is a "program as such".
Now let's extend that to "Process for performing the Sieve of Erathosthenes algorithm on a digital data processing system". Now, the claim contains a technical attribute, of course - the data processing system. This would indeed not be a program as such under the current ruling. However, following the standing decisions, as cited and emphasized in paragraph 22 of the current decision, not only has a technical element to be present, there have to be technical means for solving a technical problem. The workings of this program are neither determined by external nor internal technical factors of the computer, therefore, there are no technical means for solving a technical problem. Therefore this is still not patentable under the standing decisions of the BGH and BPatG.
Re:Is it possible (Score:3, Informative)
It is most definitely not patented - any patent would have expired a long time ago.
You are confusing patents with geographical trademarks - rules such as "only sparkling wine from the champagne region can be called 'Champagne' ". Also, the concept of geographical trademarks is only is accepted in the EU but not in North America. Here you can call your sparkling wine "Champagne", independent of where it comes from. And you can definitely call your breaded pork or veal steak a Wiener Schnitzel.