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 Specialized European Patent Attorneys

Softwarepatente

 

We represent our clients in the field of software patents and (standard essential) telecommunication patents (GSM, UMTS, LTE, ...). Over the last years we gained experience in litigation proceedings in the worldwide telecommunication industry. Furthermore we were involved in several revocation proceedings before the European Patent Office and the German Federal Patent Court.

Relevant Law

In the following only the most important laws, regulations and guidelines are presented. For legal advice please contact a patent attorney as this site merely provides an overview.

TRIPS Agreement

Only parts of the TRIPS Agreement relating to Intellectual Property Rights and especially software patents are provided. Further information on the TRIPS Agreement can be found on the website of the World Trade Organization here. The full text of the TRIPS Agreement is here .

Law PART II, Section 1, Article 10: Computer Programs and Compilations of Data
legal text 1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).
2. Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.
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Law Article 27: Patentable Subject Matter
Legal text 1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. 5 Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.
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U.S.C. United States Code

The United States Code (U.S.C.) is the official compilation and codification of the general and permanent federal statutes of the United States.

Law 35 U.S.C. 101 Inventions patentable - Patent Laws
Legal text Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
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German Patent Act (PatG)

 

Law Paragraph 1
Legal text (1) 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) Patents shall be granted for inventions within the meaning of subsection (1) even if they concern a product consisting of or containing biological material or a process by means of which biological material is produced, processed or used. Biological material which is isolated from its natural environment or produced by means of a technical process can also be the subject of an invention even if it previously occurred in nature. (3) The following in particular shall not be regarded as inventions within the meaning of subsection (1):
  1. discoveries, scientific theories and mathematical methods;
  2. schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
  3. presentations of information.
(4) Subsection (3) shall exclude patentability only to the extent to which protection is being sought for the subject-matter or activities referred to as such.
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Law Guidelines for the Examination of Patent Applications 4.3.1
text For inventions on a computer program, a computing rule, software features, a program related method, patent protection is in principle accessible, provided that they include a a technical teaching.
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The European Patent Convention (EPC)

For the full text of the European Patent Convention, see here.

Law Article 52: Patentable inventions
Legal text (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.
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Law Guidelines for Examination in the EPO; Part G - Chapter II-5
Text Inventions involving programs for computers can be protected in different forms of a "computer-implemented invention", an expression intended to cover claims which involve computers, computer networks or other programmable apparatus whereby prima facie one or more of the features of the claimed invention are realised by means of a program or programs. Such claims directed at computer-implemented inventions may e.g. take the form of a method of operating said apparatus, the apparatus set up to execute the method, or, following T 1173/97, the computer program itself as well as the physical media carrying the program (see T 424/03), i.e. computer program product claims, such as "data carrier", "storage medium", "computer readable medium" or "signal". The category of a claim directed to a computer-implemented method is distinguished from that of a claim directed to a computer program corresponding to that method (T 424/03 and G 3/08). Such claims therefore have to be examined separately.

Technical character should be assessed without regard to the prior art (see T 1173/97, confirmed by G 3/08). Features of the computer program itself (see T 1173/97) as well as the presence of a device defined in the claim (see T 424/03 and T 258/03) may potentially lend technical character to the claimed subject-matter as explained below. In particular in embedded systems, a data processing operation implemented by means of a computer program can equally be implemented by means of special circuits (e.g. by field-programmable gate arrays).

The basic patentability considerations in respect of claims for computer programs are in principle the same as for other subject-matter. While "programs for computers" are included among the items listed in Art. 52(2), if the claimed subject-matter has a technical character it is not excluded from patentability by the provisions of Art. 52(2) and (3). A computer program claimed by itself is not excluded from patentability if it is capable of bringing about, when running on or loaded into a computer, a further technical effect going beyond the "normal" physical interactions between the program (software) and the computer (hardware) on which it is run (T 1173/97 and G 3/08). The normal physical effects of the execution of a program, e.g. electrical currents, are not in themselves sufficient to lend a computer program technical character, and a further technical effect is needed. The further technical effect may be known in the prior art. Likewise, although it may be said that all computer programming involves technical considerations since it is concerned with defining a method which can be carried out by a machine, that in itself is not enough to demonstrate that the program which results from the programming has technical character; the programmer must have had technical considerations beyond "merely" finding a computer algorithm to carry out some procedure (G 3/08).

A further technical effect which lends technical character to a computer program may be found e.g. in the control of an industrial process or in the internal functioning of the computer itself or its interfaces under the influence of the program and could, for example, affect the efficiency or security of a process, the management of computer resources required or the rate of data transfer in a communication link. A computer program implementing a mathematical method that itself makes a technical contribution (see G-II, 3.3) would also be considered to be capable of bringing about a further technical effect when it is run on a computer. A patent may be granted on one of the different forms of a computer program product claim if all the requirements of the EPC are met; see in particular Art. 84, 83, 54 and 56, and G-III, 3 below. Such claims should not contain program listings, but should define all the features which assure patentability of the process which the program is intended to carry out when it is run (see F-IV, 4.5.2, last sentence). Short excerpts from programs might be accepted in the description (see F-II, 4.12).

Whether a computer program can contribute to the technical character of the claimed subject-matter is frequently an issue separate and distinct from the technical character of the hardware components which may be defined in order to execute the computer program. When a computer program produces a further technical effect (T 1173/97), it is by itself considered technical and not excluded. In contrast, any claimed subject-matter defining or using technical means is an invention within the meaning of Art. 52(1) (see T 424/03 and T 258/03, and confirmed in G 3/08). This applies even if the technical means are commonly known; for example, the inclusion of a computer, a computer network, a readable medium carrying a program, etc. in a claim lends technical character to the claimed subject-matter. If claimed subject-matter relating to a computer program does not have a technical character, it should be rejected under Art. 52(2) and (3). If the subject-matter passes this test for technicality, the examiner should then proceed to the questions of novelty and inventive step (see G-VI and G-VII).

(...)



A computer-implemented data structure (see T 1194/97) or a computerimplemented data format embodied on a medium or as an electromagnetic carrier wave has technical character (because the storage medium is a technical artefact) and thus is an invention in the sense of Art. 52(1). Such data structures or formats may comprise a mixture of cognitive content and functional data.

Technical effects associated with data structures or formats when using said data structure or format during the operation of a computer system could give rise to, for example: efficient data processing, efficient data storage, enhanced security. On the other hand, features merely describing data collections on a logical level do not provide a technical effect, even if such a description might involve a particular modelling of the described data.
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Copyright Law

Copyright arises automatically with the creation of a work, such as a computer program. Here, however, the role of copyright protection is often misunderstood. Thus, the computer scientist knows a number of workarounds. These include model-driven approaches such that an existing source code of a first programming language is translated into a source code of a second language. Under certain circumstances, this is already a new creation, which is outside of copyright protection.
An abstract idea is not able to be protected by copyright law. The problem here is that the concept of the invention is typically disclosed in the source code and that, when delivered in compiled form, the machine code can be decompiled.

In particular
Law § 2: Protected Works
Legal text (1) Protected works in the literary, scientific and artistic domain include, in particular:
1. literary works, such as writings, speeches and computer programs; (...)
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Law § 15: General
Legal text (1) The copyright owner has the exclusive right to exploit his work in material form;
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Law § 31: Granting of Rights
Legal text (1) The author may grant a right to another to use the work in a particular manner or in any manner (exploitation right). An exploitation right may be granted as a non-exclusive right or as an exclusive right, and may be limited in respect of place, time or content.
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Law § 69a object of protection
Legal text (3) Computer programs shall be protected if they represent individual works in the sense that they are the result of the author's own intellectual creation. No other criteria, especially qualitative or aesthetic criteria, shall be applied in to determine its eligibility for protection.
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Law § 69e decompilation
Legal text (1) The authorisation of the rightholder shall not be required where reproduction of the code or translation of its form within the meaning of Article 69c, items 1 and 2, is indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met: 1. The acts are performed by the licensee or by another person having a right to use a copy of a program or on their behalf by a person authorised to do so; 2. The information necessary to achieve interoperability has not previously been made readily available to the persons referred to in item 1; 3. The acts are confined to those parts of the original program which are necessary to achieve interoperability.
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Law § 69f Infringement of rights
Legal text (1) The rightholder may require of the owner or proprietor that all unlawfully produced or distributed copies or all copies intended for unlawful distribution be destroyed. Article 98 (3) and (4) shall apply mutatis mutandis.
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Law § 69g application of other laws, contract law
Legal text (1) The provisions of this Section shall be without prejudice to the application of other legal provisions concerning computer programs, particularly those concerning the protection of inventions, topographies of semi-conductor products, trade marks and protection against unfair competition, including the protection of business and trade secrets, as well as agreements based on the law of obligations.
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Utility Model Law

The full text of the Utility Model Law can be found here: Utility Model Law. Wer apologize for merely being able to provide you with a machine translation so far. Work is in progress.

Law Paragraph 1
Legal text (1) The utility model inventions are protected, which are new, on a inventive step and capable of industrial application is based.
(2) When the subject of a utility model within the meaning of paragraph 1, in particular not considered:
1. discoveries, scientific theories and mathematical methods;
2. (...)
3. schemes, rules and methods for performing mental acts, playing games or for business, and programs for computers;
4. presentations of information;
5. (...)
(3) Paragraph 2 shall exclude the protection as utility models meet only insofar as the objects or activities referred to as such protection is sought.
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Law Paragraph 3
Legal text (1) The subject matter of a utility model shall be considered new if it is not the state of the Technology is. The prior art includes all the knowledge of the Priority of the application relevant date by written description or by a took place in the application of this Act use of public access have been made. (...)
(2) The subject matter of a utility model shall be deemed industrially applicable if it on any kind of industry, including agriculture produced or can be used.
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GNU General Public License (GPL)

The GNU General Public License (GPL) does not constitute a legal Law, but has established itself in the open source community. In particular, the Landgericht München, by judgment of 19 May 2004 (21 O 6123/04) found that GPL is effective component of the Terms and Conditions as defined in §§ 305 ff. BGB of the German Civil Code.
Furthermore, it is recognized that "in the conditions GPL (General Public Licene) by no means a waiver of Copyrights and copyright law positions can be seen. The copyright of the license is the Free Software Foundation (FSF), so it will not be published on this site. However, it can be found here .

 

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The content of this webpage is intended to provide general information regarding intellectual property rights related to software and computer implemented inventions. For questions regarding a specific case please consult us directly.

 
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