German High Court Declares All Software Potentially Patentable | Hacker News Reader

German High Court Declares All Software Potentially Patentable

fosspatents.blogspot.com

26 pointsmkramlich9 comments

Correct me if I'm wrong, but I don't understand this to be as big a deal as a court decision in, say, the UK. This is because there is no doctrine of precedent in Germany. Previous decisions don't bind courts the way they do in common-law jurisdictions. I have no doubt that this decision is significant, but it's not clear to me how significant. Is this really the German equivalent of Bilski?

The Federal Court is the ultimate appeals court and thus can overrule the Patent Court, hence forcing the German Patent Office ('Patentamt') to grant the patent.

What's more, and potentially worse, judgements of the Federal Court serve to interpret and further develop the law. Hence it is very much like a precedent in the common-law sense - except one that isn't open to interpretation by other courts. If legislators now think that this is not what they intended, they are free to change the law. But you'll find other courts very much basing future judgments on the opinions of the Federal Court.

The European Patent Office has granted a fair number of software patents for technical solutions (indeed, the issue of "technicity" is key) using software. So this may point to their validity in Germany and increase litigation.

> Hence it is very much like a precedent in the common-law sense - except one that isn't open to interpretation by other courts.

I'm sorry, I don't follow this at all. I though it would be like a common-law precedent, but persuasive rather than binding with respect to future decisions?

My reasoning was that it's a different situation because civil law courts aren't absolutely obliged to follow past decisions.

Sorry, that was confusing indeed. It's late/early here.

Persuasive, not binding is correct. But in practice the authority of the court is such that most lesser courts will honor it. I was also wrong on the "highest appeals court" count - if the issue is of constitutional interest, there is the Federal Constitutional Court.

Oh, "Java Virtual Machine" is a scripting language now... (Page 6 of the Court's decision in German)

To understand the technical aspect, have a look at (14) in the court's decision - at first I got a heart attack since it talked about running Java Beans on a frigging micro controller, but in the second part it's made clear it will be run on a modified runtime environment for resource constrained computers (this is the innovation) while still allowing the same JSP document as on a normal Java runtime.

General concepts are still not patentable and any patent mustn't be based on conceptual thoughts, but on usage of technical instruments. (demand of technicality)

From a philosophical point of view, I think it's fair to grant patents like this (all usual requirements for patents persist, i.e. result of inventory activity, no prior art), but I fear what the original article describes: People using technical innovation as a back door to software patents.

And since when using a modified runtime environment tailored to the limited resources of the target platform is an innovation?

http://portal.acm.org/citation.cfm?id=802845 comes to my mind, just a Google query away.

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