Mueller: German high court declares all software potentially patentable

[Posted May 20, 2010 by jake]

Florian Mueller looks at a decision of the highest German appeals court that overrules a lower patent court ruling that struck down a patent. This ruling—about a Siemens patent, not the recent upholding of a Microsoft FAT patent—was made on April 22 and the decision has now been made public. "This ruling has very general implications and ramifications. It's not just about that one case. This decision has the effect that in Germany, a country in which software patents were previously only considered valid under relatively strict criteria, 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. There are many such patents that the European Patent Office and national patent offices have granted, and those are now more enforceable than ever." (Thanks to Max Hyre.)

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 4:27 UTC (Fri) by roc (subscriber, #30627) [Link] (8 responses)

I hope this induces second thoughts in all the people who have been saying that the battle over patent-encumbered video standards doesn't matter to them, since software patents aren't enforceable in Europe.

End software patents

Posted May 21, 2010 6:23 UTC (Fri) by man_ls (guest, #15091) [Link] (2 responses)

It does. Does this battle have to be fought country by country, or can it be brought to EU institutions? (It is one thing to allow software patents in the European Parliament and another to ban them in all member states.)

End software patents

Posted May 21, 2010 9:09 UTC (Fri) by coriordan (guest, #7544) [Link] (1 responses)

Both are possible. The EU hasn't passed any legislation about patentable subject matter, so the member states are still free to write their own legislation in that domain. A second attempt at EU legislation is also possible.

I know that some people in FFII want to push for national legislation in a few countries. That would be great, but I haven't heard of any progress.

I'm documenting the situation here: Software patents exist in Europe, kinda.

End software patents

Posted May 21, 2010 17:47 UTC (Fri) by ballombe (subscriber, #9523) [Link]

> I'm documenting the situation here: Software patents exist in Europe, kinda.

I think another reason for the low number of case in Europe, is that European courts tend to grant much lower monetary award than US courts.

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 9:53 UTC (Fri) by nix (subscriber, #2304) [Link]

This indicates that the battle over patent-encumbered *anything* *cannot be won*, at least not with the legal environment as it presently is. Yes, some patents on particular video formats are being enforced now, but do you really believe that you can write *any* program of any length which doesn't infringe some troll's patent, and that they won't come after you as soon as you get big enough?

How important is Precedent? (in the German high court)

Posted May 24, 2010 10:20 UTC (Mon) by pdundas (guest, #15203) [Link] (3 responses)

How important is this precedent in the German Civil Law system (as opposed to the Common Law system in use in jurisdictions like the US and England)? Isn't precedent somewhat less binding in a Civil Law system?

How important is Precedent? (in the German high court)

Posted May 24, 2010 21:16 UTC (Mon) by Wol (subscriber, #4433) [Link] (2 responses)

Precedent is binding on lower courts. So if a Judge sees a case in *parallel* court (which is the normal state of affairs) he is free to take cognisance of it or ignore it as he sees fit.

IF, however, AS IN THIS CASE, he is pointed at a higher court then he must obey it. As this is the highest normal court in the land, it applies everywhere.

Cheers,
Wol

How important is Precedent? (in the German high court)

Posted May 25, 2010 7:58 UTC (Tue) by johill (subscriber, #25196) [Link] (1 responses)

IANAL, but AFAIK that simply isn't true. However, if the court ignores it, it is obviously fairly likely that the decision will be appealed and go to the higher court, which might unsurprisingly see things like it did before. But it's not binding to the lower court in any sense of the word.

How important is Precedent? (in the German high court)

Posted May 25, 2010 11:28 UTC (Tue) by Felix.Braun (guest, #3032) [Link]

Johill is right. Decisions of the High Court are in principle only binding for the case at hand. However, in practice the underlying reasoning will be applied to other cases as well, because otherwise the lower courts run a high risk that their decisions will be appealed.

So in order to convince a lower court to deviate from existing precedent you do need a very strong argument that the High Court's reasoning is faulty or doesn't apply any more.

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 5:32 UTC (Fri) by bcebul (guest, #41527) [Link] (9 responses)

"The price good men pay for indifference to public affairs is to be ruled by evil men." -Plato

The Germans should know this better than anyone. So how could they allow this evil?

"Laws are partly formed for the sake of good men, in order to instruct them how they may live on friendly terms with one another, and partly for the sake of those who refuse to be instructed, whose spirit cannot be subdued, or softened, or hindered from plunging into evil." -Plato

The German judges are obviously poorly educated in the classics.

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 7:12 UTC (Fri) by proski (guest, #104) [Link] (1 responses)

Judges may be well educated, but they are limited in their interpretation of the law. Courts can make laws more palatable, but it's not realistic to expect courts to repeal or amend bad laws. Only legislators can do it.

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 9:43 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link]

Not really. Judges deliberately choose the loosest possible interpretation of the law.

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 7:55 UTC (Fri) by mbanck (subscriber, #9035) [Link] (1 responses)

Eh, german judges are also independent, are you saying germans should recall their judges because they don't like their verdicts?

What is needed is clearer legislation.

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 10:37 UTC (Fri) by Tobu (subscriber, #24111) [Link]

Which is provided by the european patent convention:

Article 52
Patentable inventions
(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.
(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) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 16:51 UTC (Fri) by mattdm (subscriber, #18) [Link] (4 responses)

The Germans should know this better than anyone. So how could they allow this evil?

Probably because they're not equating big-business-favored intellectual property laws with the Holocaust. Is that really where you want to go with this?

Mueller: German high court declares all software potentially patentable

Posted May 22, 2010 17:13 UTC (Sat) by nix (subscriber, #2304) [Link] (2 responses)

Exactly. There are things that are unambiguously evil to all but the insane (e.g., the Holocaust), and then there are things where reasonable men may disagree. Although everyone in the free software community despises software patents, it is plain that some reasonable men appear to disagree with us. Now maybe they are *all* corrupt, self-interested, evil bastards. But is that really the position you would like the *law* to take?

How true

Posted May 23, 2010 17:40 UTC (Sun) by man_ls (guest, #15091) [Link]

Yes, the search for moral absolutes is paved with inane discussions (hence Godwin's law). Interesting moral values are always relative, and therefore subject to opinion.

For software patents you have to be a practitioner (of software design, construction...) and know more or less how the patent system works to appreciate the danger they pose. A sane system looks like it should reward innovators, but we know that it is almost impossible to get right and it is really not worth the trouble.

Mueller: German high court declares all software potentially patentable

Posted May 24, 2010 16:48 UTC (Mon) by Cyberax (✭ supporter ✭, #52523) [Link]

"But is that really the position you would like the *law* to take?"

Yes.

Mueller: German high court declares all software potentially patentable

Posted May 24, 2010 12:09 UTC (Mon) by nye (subscriber, #51576) [Link]

>Probably because they're not equating big-business-favored intellectual property laws with the Holocaust. Is that really where you want to go with this?

Nice bit of derailing there. Good job.

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 13:03 UTC (Fri) by error27 (subscriber, #8346) [Link]

The patent system relies on self restraint to work. If IBM sued everyone who violated their patents the court systems would collapse. Everyone keeps trying to force the open source community to get involved, but they forget that we're not restrained people.

If a company sues you, you can counter sue and settle. But if an open source project sues you, they might not care about counter suits. Open source people don't believe in mutually assured destruction. Companies can be destroyed but open source just moves to a different mirror and carries on.

If a non-practicing entity sues you, they can easily be bought off. You probably have insurance for that. But if an open source project sues you, they might not care about money.

The open source crowd has just wants to be left alone. But Microsoft is constantly threatening us and even sued us over the FAT patents. It will probably take five years for people to get organized to go on the offensive, but if they keep on that way it's going to happen. It going to get ugly.

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 16:46 UTC (Fri) by caitlinbestler (guest, #32532) [Link] (6 responses)

The issue is not *software* patents, it's allowing patents on *obvious*
"inventions".

If an "innovation" is not truly innovative you should not be able to
patent it merely because you implemented it in hardware. The novelty
of the algorithm should be indifferent to the implementation.

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 17:04 UTC (Fri) by coriordan (guest, #7544) [Link] (5 responses)

Patent quality doesn't raise the same issues in the hardware industry. For one thing, some sectors use it kinda like copyright. Notice every child's plastic scissors has "patent pending" stamped somewhere. I'm sure most or all of those patents are never, ever used, but it's a way to tell other scissors makers that commercialising an exact copy would not be cool.

Low standards facilitate that (non-harmful) purpose.

Secondly, the vast majority of entities capable of mass producing hardware can afford patent battles. There are many costs of being in the hardware business, so patents just adjust the costs upward.

On the other hand, the vast majority of entities capable of producing software *can't* afford a single patent battle - individuals generally can't even afford to get a lawyer's opinion. So it's far worse than modifying some existing cost, it's creating a cost where there was none, and a completely unaffordable cost at that.

Mueller: German high court declares all software potentially patentable

Posted May 21, 2010 18:36 UTC (Fri) by jrigg (guest, #30848) [Link] (1 responses)

It might be true that mass producers of hardware can usually afford patent battles, but there are many more small companies manufacturing hardware than large ones. Many of these are unable to afford to contest a patent even if there are good grounds for doing so (I used to design for a small electronics company that found itself in this position).

Of course software developers are more exposed to this problem, but there isn't necessarily a neat division between software and hardware industries on this particular point. (The fact that patents are granted for what are essentially algorithms in programs is another matter).

Mueller: German high court declares all software potentially patentable

Posted May 24, 2010 11:16 UTC (Mon) by coriordan (guest, #7544) [Link]

The reason I see a (kinda) neat division is that, if a patent licence costed ten cents, they wouldn't be a problem for the small companies you mentioned, but they'd still be a brick wall for free software developers.

Patent pose problems for small hardware companies, but there could be a solution in tweaking the costs. For software, only abolition solves the problem.

Mueller: German high court declares all software potentially patentable

Posted May 24, 2010 21:21 UTC (Mon) by Wol (subscriber, #4433) [Link] (1 responses)

But these aren't patents in the format we understand. They're properly called "Design Patents" and are, as you say, a form of copyright.

If something is protected by a design patent, there is nothing stopping you making something functionally similar. A design patent is intended to stop you making a drop-in replacement.

Cheers,
Wol

Mueller: German high court declares all software potentially patentable

Posted May 24, 2010 23:23 UTC (Mon) by coriordan (guest, #7544) [Link]

I hadn't considered that they might be design patents.

With the lack of complicated judgements to be made, I figured design patents would be processed so fast that no one would have to go into production while the patent was still pending.

Mueller: German high court declares all software potentially patentable

Posted Jun 14, 2010 13:41 UTC (Mon) by Cato (guest, #7643) [Link]

It's possible those manufacturers are applying for "design patents" which cover the visual / non-functional aspects of the design - see http://en.wikipedia.org/wiki/Design_patent and contrast with "utility patents" which cover the functioning of machines, software, pharmaceuticals, etc.