

Germany Is the Place to Go to Block a Rival's Technology - Cadsby
http://www.nytimes.com/2012/04/09/technology/09iht-patent09.html?_r=1&ref=technology

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aristidb
This article is about a peculiarity of the German system (preliminary
injunctions, no proportional damages) that make the German system especially
harmful to the sued companies.

The underlying problem of a patent system that encourages companies in the
emerging world of mobile technology to sue each other instead of, as a patent
system should, promoting progress - that problem exists in all of Europe, and
the USA. Actually, it is probably SLIGHTLY worse in the USA, because of the
much wider scope of patents (business method patents, less strict scope for
software patents).

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codesuela
It's worth mentioning that at least there are no Software Patents in Germany.
See
[http://en.wikipedia.org/wiki/Software_patents_under_the_Euro...](http://en.wikipedia.org/wiki/Software_patents_under_the_European_Patent_Convention#Germany)

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rbehrends
It's not quite that straightforward, alas.

The 10th civil senate of the Federal Court of Justice (X. Zivilsenat des BGH)
has, over the years, meandered back and forth regarding the patentability of
software [1].

Currently, it's hewing pretty close to the EPO's criteria, which do allow a
fair amount of what most people would consider software patents (though the
criteria tend to still be a bit more restrictive than those of the USPTO).

As in other European countries, an invention involving software must still be
"technical", meaning that it must manipulate "controllable forces of nature"
[2]. While that was originally interpreted fairly narrowly, starting with the
BGH's "Dispositionsprogramm" decision, which pretty much ruled out anything
that could run on a general purpose computer, recent interpretations of this
"technicity criterion" have become far less restrictive.

[1] <http://en.swpat.org/wiki/Case_law_in_Germany>

[2] <http://en.swpat.org/wiki/Controllable_forces_of_nature>

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xxpor
Doesn't case law not really matter in Germany, since it's a civil law country?

~~~
rbehrends
Civil law or not, courts still have (and need) the power to "legislate the
gaps" (and similarly, statutes override case law even in common law
countries). That has always been the case.

The problem is that there are genuine inventions that do involve software,
such as computer-controlled anti-lock braking systems. This has led to the
widely accepted doctrine of only "computer programs as such" being exempted
from patentability; what is being disputed is what "as such" means and when a
software-based invention is more than just a computer program.

As to the relevant statutes, the wording of section 1 of the German patent law
(in agreement with article 52 of the European Patent Convention, which exempts
"programs for computers") is that "programs for data processing devices" are
not patentable, and the more recent BGH decisions really stretch the
interpretation of the law to the breaking point of plausibility.

