German High Court Declares All Software Patentable

FlorianMueller writes "Long gone are the times when Europe was that bastion of resistance against software patents and patents on such things as file systems were ruled invalid. In a decision published today, the Federal Court of Justice of Germany upheld a patent on the automatic generation of structured documents (such as XML/HTML) in a client-server setting. The ruling lays out general principles that go beyond the patent at stake: they tear down all barriers to software patentability in the largest EU member state, even though a European patent treaty has been adopted that was intended to exclude software from the scope of patentable subject matter. EU patent examiners recently warned against a drift toward software patents. Software patent critics in Europe fear this will spark more litigation on their continent and increasingly call for defensive measures."

Comments

Re:The Courts

[Kjella]

People need to understand that in most western countries, the judiciary is a kind of priesthood utterly divorced from reality or common sense.

Having read quite a few court cases in my years on slashdot, I would say they tend to be by far the most reasoned voices I've heard from any of the three branches of power. Very often you just get flaming insults with zero reading of the actual verdict.

To take one example, I read a US Appeals court decision that upheld EULAs. I'm sure you can imagine the flame fest, they were retards who shouldn't have made it out of grade school. I read the verdict, and basically their main focus was if the same happened elsewhere, for example like buying a plane ticket over the phone - tons of terms and conditions apply but they're not all read over the phone. They listed many examples but I didn't memorize them, but they found that this was accepted practice many places, the customer had not been mislead, the terms were not unusual for the software and even the name said something like personal edition, the refund possibility was explicitly made clear and basically he just wanted to get out of the contract because if the "personal use" restriction of the EULA didn't apply he could make lots of money. Even I that am against EULAs had to agree he looked like a dirtbag and so the court said you walked into this with open eyes and we're not going to spring you.

By the way, the "terms were not unusual" part was also the cause for another flame fest, the slashdot spin was like "if you expect to get screwed, it's okay to be screwed?!". Uh, yes in pretty much every case the court will look at what people normally get. If it's customary to sell a car with wheels then you'd better put it in the contract if there are no wheels, even though people would still call it a car without them. On the other hand if you still had some belongings in the glove compartment they'd naturally not be there. This is just common sense, and yet it became another reason to bash the courts.

Another good example is the Grokster case. Basically the Appeals court granted summary motion like "No way you can be held guilty of anything". The Supreme court stepped in and said "Eh, if they can prove the defendants sold it like a tool to break the law and encouraged people to break the law, they might" and reversed it for regular trial. As a legal principle it made perfect sense, even if a gun is legal you can't go around selling it like a great murder weapon targeting people in bad divorces making overt suggestions. The question was if Grokster was guilty of anything like that but nothing was ever proven or sentenced because they folded and that was the end of it, but of course the courts got the blame. Even though the opposite would have been complete and utter nonsense.

Your average court is usually fucked two ways, the laws as written and that they have to listen to every absurd legal theory a lawyer can come up with, giving them every possibility to have their day in court - see SCO. Just to take one of your examples, children convicted of child sex abuse, it's a problem that is entirely in law and should be fixed in law. How is it a judiciary problem that Congress didn't exclude self-molestation (lol at the term) from the law? What kind of legal basis would you like them to use, when there's not an ounce of unclarity in the law? You want them to just say "We don't like the rules, so we're changing them"? And in pretty much any story we get one person who think vigilantism from the jury bench should rewrite the law, because that won't lead to injustice because people hate the victim or love the perpetrator.

By far some of the worst are those that would like the courts to invent some new standards of legal certainty or otherwise make it such an impossible process that people can't ever get convicted, as long as it works in favor of the side slashdot is cheering for. Most usually that involves petty copyright infringers who are never guilty even when they're caught