

German High Court Declares All Software Potentially Patentable - mkramlich
http://fosspatents.blogspot.com/2010/05/german-high-court-declares-all-software.html

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pmccool
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?

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maxniederhofer
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.

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pmccool
> 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.

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maxniederhofer
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.

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johkra
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.

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rbanffy
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.

