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

Noooooooo !

[Yvanhoe]

There goes the possibility for small innovative company to develop in a safe legal framework. Let me phrase my sentiment, on behalf of all my European colleagues, and in the immortal words of Spider Jerusalem : FUCK FUCK FUCK FUCK FUCK FUCK FUCK FUCK FUCK

Re:Noooooooo !

[Pinky's Brain]

Small inventors who want to work on stuff they can't bring to market by themselves do benefit, because without patents it's very hard for them to get money together in secrecy to get a lead on the market. That said, the damage it does to small (software) engineering companies by making any little project they do trip over a dozen of patents means it still is not worth it.

As for big companies, they might benefit from being able to throw up barriers to entry ... but slowly but surely it's becoming apparent that "it protects the big guys" was just a way the lawyers used to sell it to the big companies. Being able to throw up patent walls doesn't protect you from being bled dry by patent trolls.

In the end there is only one group who benefits from patents and suffers no negative results ... lawyers.

Re:Is it possible

[jedidiah]

Just you wait...

        A recipe is just another form of algorithm.

Time for another web protest

[denis-The-menace]

Time for a bunch of web sites to close up shop for a day to remind how this will affect things on the web.

Re:Does it make a difference

[cbiltcliffe]

So that means if I sell software, without any hardware with it, then I'm not infringing on _any_ software patents, right?

The users might be, if they run said software on "a hardware appliance, comprising of a CPU, blahblah", but not the developer.

But then, why do pure software developers get sued, huh?

there once was a time

[circletimessquare]

when intellectual property law was meant to protect the solitary inventor from the predatory conglomerate. now the predatory conglomerate just preemptively carpet bombs their intellectual property territory and backs it up with a legion of lawyers. the solitary inventor doesn't stand a chance

intellectual property law is defunct. it is philosophically bankrupt and must be replaced wholesale, ignored, or at least radically revamped. this applies to trademark, copyright, and patents: the whole lot of it is rotten to the core and betrays any noble principles it was ever meant to uphold

Re:there once was a time

[melikamp]

While you are right about patents and copyrights, none of our grievances have any relation to the trademark law, which is used to prevent scam. Richard Stallman is right: stop using the words "intellectual property", you have no clear understanding of what they mean, because they are not intended to have a clear meaning.

Re:there once was a time

[TheDarkMaster]

Simply ignore patents. And if a lawyer appears trying to force you to accept them, kill the lawyer.

Re:Is it possible

[jimboindeutchland]

It probably is, however, it might already be patented in Austria since that's where the Wiener Schnitzel was invented. Also the Wiener sausage.

Wien is the capital of Austria. It's called Vienna in English.

Boycott Germany

[H0p313ss]

Start including a disclaimer in all license agreements, something to the effect of "This software may be in violation of German patent law and is therefore not available for use in that country"

Refuse to sell or license any software to anyone in that country who is not willing to sign a disclosure stating that they are fully aware of the implications of German patent law and are responsible for any violations that may occur.

Provide information for how to contact any German political organization that opposes software patents

Re:Boycott Germany

[TheRaven64]

Don't forget the USA and South Korea in that disclaimer. Something like the GPL, which has a clause preventing you from distributing the software if it is in violation of patents, already contains such a disclaimer. Given that any jurisdiction which allows software patents quickly tends towards a situation where any nontrivial piece of software is infringing several patents, it's now likely not to be legal to copy GPL'd software in Germany, either now or soon. Someone should probably mention this to Munich...

Re:Boycott Germany

[Pinky's Brain]

It's always been my opinion that projects like xvid and x264 should have a "may not be distributed in the United States" (and now also Germany) in the license. For something like Linux and GCC you might have a case when you say "well there are patents, but they aren't being litigated so who knows if they are valid" but for MPEG some of the patents are known to be litigated and known to have been declared valid in court.

Any copying being done for American (and now German) recipients for these projects is not authorized by virtue of the GPL ... if you can not can not provide the rights which come with the GPL then the GPL does not grant you the right to distribute. The project owners are really subverting the GPL by pretending that's not true.

Re:Boycott Germany

[H0p313ss]

I'm perfectly aware of the idiocy I'm suggesting. I'm also Canadian so my reluctance to boycott the US is somewhat limited.

At some point we have to make a stand against this lunacy. It's now almost impossible to write code without being at the mercy of a patent troll.

Re:Boycott Germany

[TheRaven64]

Munich is the site of one of the largest Linux deployments in the world, so it makes more sense to tell them that they are (about to be) operating illegally than to tell Berlin, which is a much smaller user of GPL'd code.

Re:Boycott Germany

[shutdown -p now]

A better way would be to allow redistribution, but only if the redistributing party allows free use of any patents it owns for the code it is redistributing to anyone receiving that code, with a right to sublicense them further (so that they can in turn comply if they redistribute). But then you just get GPLv3.

Re:Show me the software!

[Snarf You]

If you make

I think you

Thanks Germany!

[mrpacmanjel]

First you unleash an insane dictator over most of Europe, encourage David Hasselhoff to keep singing (why?), think bailing out the Euro is a "good thing", produce annoyingly reliable cars and now decide software is patentable.

Thanks for nothing.

How to Fight This?

[aaaaaaargh!]

That's pretty shocking news to me as a German, because (naive as I am) I always considered the German High Court is halfway reasonable.

Could we perhaps fight software patents by getting completely ridiculous and untenable patents accepted and afterwards make this public? -- This could have the desired effect but is probably never going to happen, because the whole patenting process is a bit expensive. :(

In my opinion the whole idea that someone could dictate me what computational methods I use and sell is totally ridiculous. A lot of my work involves formal logic and methodology and I can't wait for the day when I'll publish a scientific paper that unbeknown to me infringes on some patent and then get sued for it. If this software patent idiocy continues, it will be impossible to teach any higher mathematics at university in 200 years from now without violating someone's patents, but I'm sure some companies already have licensing plans in the drawer for this scenario. Crazy...

More info on swpat.org

[ciaran_o_riordan]

I'm working on documenting this, and the general German situation, here:

• Xa ZB 20/08 (2010, April, Germany) (that's this case)
• German patent courts and appeals
• Case law in Germany

swpat.org is a publicly editable wiki, help welcome.

Down the rabbit hole

[sweatyboatman]

by that logic, I could get a patent for my novel by describing its contents and adding "a hardware appliance consisting of a bound book with paper pages printed on with ink". Then I could sue anyone who made a book using the themes of my patented invention. Wow, I'm gonna get rich! I sure hope nobody else has patented this idea already! (Note to self: remember to file a parallel patent describing how my book would be displayed on a eReader)

As cbiltcliffe points out above, software patents are presented and enforced as "process" patents. A software patent is not for the invention of a machine, it's a generic "way of doing" something on a machine.

That some patent lawyers attempt to shoehorn a process patent into a hardware patent by appending a generic description of a computer just shows that they acknowledge that, without such machinations, a software process would not qualify for patent protection.

Computers are designed to run generic code, that's their function and core value. To claim that running your patent-pending software on a machine that's designed to run generic software is somehow an improvement of that machine is ludicrous.

Re:Down the rabbit hole

[naasking]

Talk about missing the point. Firstly, if patents are supposed to encourage innovation, why introduce them into the software market where innovation is happening at a breakneck pace? Do you really think the legal process you just described will hasten the pace of software development?

Secondly, the economics of software and physical innovations are multiple orders of magnitude different. Suffice it to say that when you can design, construct and ship near infinite units of a physical good that cost you a total of $10,000 in equipment and time, then I'll acknowledge that physical goods and software are even remotely comparable and require the same protections to recoup R&D investments.

Thirdly, software is mathematics which is not patentable anywhere. Your attempted circumventions by tying an algorithm to a general purpose machine is ludicrous, because I can just as easily write my mathematical proof in a theorem prover instead of on paper. The proof can then be checked and executed on a machine, which by your reasoning makes it patentable, thus contradicting the idea that math is not patentable.

I'm sorry, but IMO pro-software patent people are deeply ignorant of the nature of software and mathematics. They want to prevent patenting math but allow patenting software, and they don't even realize these two goals are mutually contradictory. As I said above, if you want to patent software then you have to open a debate about patenting certain types of math. Don't pussyfoot around the issue, because that's dishonest.

The Courts

[ObsessiveMathsFreak]

People need to understand that in most western countries, the judiciary is a kind of priesthood utterly divorced from reality or common sense. What matters to lawyers and judges are not concepts like "justice", "equity" or "reason". What matters to them is the written rule of the law, and how it is best spun into ways that benefit both the priesthood and its patrons--the wealthy and powerful. The courts have no interest in the effects of their judgements. They have interest only in which lawyers arguments were more pleasing in the eyes of legal dogma.

This is a very, very serious problem which has only gotten worse in recent decades. The fact that most politicians are drawn from this clique has only accelerated the utter divorce of the courts from reality. Decisions like these are symptomatic of a judicial system that has broken down at a basic level. There are more across the legal spectrum: lenient corporate fines, excessive tort compensation, stringent libel fines, patents in general, children being convicted of child sex abuse, the rollback of habeas corpus, excess cost of legal defence, battery, etc, etc. The court system is entirely broken.

We live in an age of the misrule of law. If things get any worse, we'll be better off with no legal system at all.

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

Re:Is it possible

[Opportunist]

Not quite, but almost. From the Wikipedia article about it:

"In Austria, the term Wiener Schnitzel is protected by law, and any schnitzel called by that name has to be made from veal."

While not a patent per se, there are certain things called by a certain region or town that either have to be made in this town or by some specific process. You cannot really get any Champagne in Europe that wasn't made in the region of Champagne. But this is essentially more due to the PDO regulation rather than a patent itself.

Re:Does it make a difference

[robot256]

That, sir, is what we call a loophole in the interpretation of the law and it must be closed by changing patent law. Why is math any more patentable when you claim to execute it on a physical computing device than when you present it academically (i.e., executed on a human computing device)? The latter is legally non-patentable, so the former should be as well. This is the philosophical argument against software patents.

The only "process" involved in a software patent is the act of executing non-patentable mathematics on nonhuman computing hardware. However, the hardware itself was designed for the express purpose of executing mathematics, making the process neither novel nor nonobvious and thus non-patentable. This is what I believe to be the legal argument against software patents. IANAL, so please correct me if there is an error in my reasoning.

This legal argument has been ignored by patent offices and court systems alike. Only further clarification of patent law by legislative bodies will remedy the situation.

Bad Precedence - Design Patterns In Trouble

[s31523]

Even though TFA states "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", many standard design patterns used could be in trouble. For example implementing the well-known Observer pattern using non-OO language constructs, in say Ada83, could be a patentable thing. I mean, this is really bad precedence here and something every software engineer, hell, every company should care about.

that's it. welcome back to the dark age

[C0vardeAn0nim0]

seriously, we're going all the way downhill back to the dark age.

it's censorship in australia, holding prisoners without charges in US and england, now with software patents, we'll see the resurgence of guilds.

it'll be such a fucked up environment, that only those who are members of a certain guild will be able to make any products in certain field, and if a new entrepeneur tries to enter the market, the established guild will throw all the wheight of the legal system on the new guy.

soon, access to information will be so restricted, that unless you're born in a certain class, you won't have any change of progress or innovating or "changing the world".

when is the first ship to mars leaving ? i'm starting to think that a cold, desert planet with no breathable atmosphere is not such a bad idea after all.

Re:Hello World

[Bakkster]

Well, "Hello World" happens to be one of the very first programs ever made and has plenty of prior art.

That's never stopped patent offices from awarding a patent anyway.

Re:Hello World

[ciaran_o_riordan]

> Isn't source code structured? Automatic code generation is quite ancient.

Yeh, but this patent is on doing that on a *limited resource* computer.

Code generation might be decades old, but do you really think anyone thought of doing code generation on a computer with less then 2Gb of RAM and less than a 1Ghz processor in the 70s or 80s?

Hat's off to Siemens for this stroke of genius.

Re:Does it make a difference

[naasking]

It merely says that inventions that are PURELY composed of "schemes, rules..." are not patentable.

Software is purely composed of schemes and rules. I'm sorry, but every comment you've made in this thread implies that you don't understand the mathematical underpinnings of software. Software is mathematics. Period. Full stop. U.S. patents on math and "abstract concepts" are specifically forbidden. A programming language is formal symbolic language in which mathematical theorems are written, which just happen to have a translation to a physical machine which can perform these operations for us. And yes, this description applies to C and C++ too.

If you want to patent a physical invention of which software forms a part, fine, as long as the physical component is sufficiently novel. You cannot patent the software algorithms themselves, and sticking "A hardware appliance comprising of a CPU and volatile or non-volatile storage, and..." does not circumvent that, because that CPU is a general purpose device that can run any specific type of software.

The fact that you have written software such that the CPU does what you want does not suddenly make that configuration patentable, because that hardware is just following a recipe, and abstract formula for achieving results from a set of inputs. In other words, that machine is just doing math for you.

Now you can talk about revising the patent criteria to include certain types of math, and that's a whole separate debate, but at least acknowledge it for what it is. Stop being coy and evasive. I'm speaking to all pro-software patent people here, not you specifically AbbeyRoad.

Re:Hello World

[AndrewBC]

Ada Lovelace disagrees.

Re:Does it make a difference

[lgw]

You
do
not
have
to
press
return
after
each
line
on
the
Internet.

Re:Please provide sample claim on 'software as suc

[Mindcontrolled]

Where did the decision waive the requirement of a technical nature of the inventive step? Paragraph 27 states that technical means for solving a technical problem are existent, if the workings of a program are "determined by technical conditions outside of the data processing system" or if "the program considers technical conditions within the data processing system" - the latter being the reason for the decision. This is in line with "Seitenpuffer", for example.

As for a claim of a program "as such" - I would offer a process claim dealing with a plain, abstract algorithm. Just imagine a "Process for performing the Sieve of Erathosthenes algorithm." - you can derive a full claim from that yourself, the steps of the algorithm are known. The claim contains no technical attribute, and therefore is not patentable under 1 - compare paragraph 19 of the decision. It is a "program as such".

Now let's extend that to "Process for performing the Sieve of Erathosthenes algorithm on a digital data processing system". Now, the claim contains a technical attribute, of course - the data processing system. This would indeed not be a program as such under the current ruling. However, following the standing decisions, as cited and emphasized in paragraph 22 of the current decision, not only has a technical element to be present, there have to be technical means for solving a technical problem. The workings of this program are neither determined by external nor internal technical factors of the computer, therefore, there are no technical means for solving a technical problem. Therefore this is still not patentable under the standing decisions of the BGH and BPatG.

Re:Is it possible

[eggnoglatte]

It is most definitely not patented - any patent would have expired a long time ago.

You are confusing patents with geographical trademarks - rules such as "only sparkling wine from the champagne region can be called 'Champagne' ". Also, the concept of geographical trademarks is only is accepted in the EU but not in North America. Here you can call your sparkling wine "Champagne", independent of where it comes from. And you can definitely call your breaded pork or veal steak a Wiener Schnitzel.