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: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]

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:Show me the software!

[Snarf You]

If you make

I think you

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.

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: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:Does it make a difference

[lgw]

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