German Court Effectively Opens The Floodgates By Saying Software Patents Are Legal

from the uh-oh... dept

You may remember that, about six years ago, there was a push in Europe to have the EU Parliament legalize software patents. After a huge uproar among folks who understand just how damaging towards innovation software patents can be, the EU Parliament voted against the idea by a huge margin. Except… software patents are still finding their way into Europe. Last year, we wrote about how the UK was now recognizing software patents by saying that it’s not a pure software patent if it makes a “technical contribution,” whatever that means.

Perhaps even more alarming is the news, found via Glyn Moody that a German court has effectively allowed a wide range of software patents. Previously, you could have very limited software patents only if they involved using “controllable forces of nature” to create a desired effect. Software usually did not qualify:

By contrast, the new ruling of that court on the document generation program now sets the bar extremely low. It now basically says that a computer is a technical device per se and software that “takes into account” the characteristics of that computer is patentable. To give some examples, if you make sure you don’t allocate infinite amounts of memory (since every computer has limits in that respect), that might be enough. Or you ensure that you don’t use too much bandwidth over a network.

So, as we sit and wait in the US for a ruling on Bilski, hoping (but doubting) that it will greatly curtail software patents, Germany is going in the opposite direction.

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Comments on “German Court Effectively Opens The Floodgates By Saying Software Patents Are Legal”

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Mark Blafkin (profile) says:

A few corrections


We can agree to disagree (and debate long into the future), whether software patents are good, evil, or somewhere in between. However, there are a few facts that you have wrong in this post:

1. HARMONIZATION NOT LEGALIZATION. The push 6 years ago was NOT to legalize software patents. It was to harmonize the rules by which the EPO and other European patent offices handle computer-implemented inventions. The CII directive would have done effectively NOTHING to expand the legality of software patents.

2. SOFTWARE PATENTS WERE ALREADY LEGAL IN EUROPE! Software patents were already legal in most European patent offices, but have been called funny names (computer-implemented-inventions) and/or sorta-limited by language like “controllable forces of nature”, etc. Moody is wrong about these usually preventing software patents. The most obvious proof is that fact that Microsoft got a German patent for the FAT file system that was recently upheld by the courts there.

Richard (profile) says:

Re: A few corrections

Frankly your comment is a misrepresentation of the situation.

Software patents were generally not legal in most European countries. Unfortunately, just like “obvious” patents, a few got through the patent offices and even the courts – but many were rejected by national patent offices. Unfortunately the EPO was particularly lax.

IF it was a harmonisation then it was a harmonisation in favour of worst practices – which amounts to a legalisation in my book.

It’s like saying that because the police sometimes turn a blind eye to personal use of cannabis legalisation of cannabis would merely be a harmonisation.

And, as someone who was involved with the FFII campaign at the time it is difficult to imagine how we could all have got so upset about something that would have had no effect.

Mark Blafkin (profile) says:

Re: Re: A few corrections

I’ll have to respectfully disagree with your interpretation of the events. Like most grassroots campaigns, the FFII spread a lot overstatements and mistruths in an attempt to scare individuals into getting involved.

Software patents are and have been legal throughout most of Europe. The CII Directive would have done very little to change the patentability of software in Europe.

Sorry, the FFII got you all ramped up to fight something that wouldn’t have done much to change the current situation…but that is the reality.

Richard (profile) says:

Re: Re: Re: A few corrections

The UK patent office has rejected many software patents that the EPO accepted. The directive would have forced national patent offices to align with the bad practice of the EPO.

Now it’s true that the UK courts have occasionally overturned these rulings – but there are still far fewer such patents in the UK than in the US.

And if it was all pointless why did the prop patent lobby do so much lobbying for something that “wouldn’t have done much to change the current situation” ?

Your post makes no sense.

igf1 says:


Right, I’m surprised when people from the EU claim that idea patents are not legal in the EPO. Thats not true, and I usually provide a list of insanely stupid patents that were filed in the last two years.

You think we have a patent thicket now? wait until we have overlapping patents throughout the EU and eventually the world. The WTO will have to fast track the demise of global trade, as it will end up with a 20 year backlog other wise.

Igf1 says:

Re: Re: Re:

How do you know? I mean, it’s undeniable that the proliferation of patents has cost hundreds of billions of dollars. Most of which went to either large companies or to IP holdings companies. You cant know what might have been, I suspect that innovation has been hampered a great deal, as I can tell you first hand that when seeking investment, PP and VC firms look at all the risks and of course getting sued for having buttons on your web page is a huge risk. So, yeah, I would say that there are many things that have not come to fruition over Software/Process/Method/Idea patents…

Either way, lawyers seem to have prospered from all this litigation if no one else has. Remember when patent attorney was a niche?

Mark Blafkin (profile) says:

Re: Re: Re: Re:

How do you know we would be better off without them? Two facts pose a massive problem for your argument:

1. The US has one of the most liberal approach to software patenability in the world.

2. The US has the most robust and innovative IT industry in the world.

Clearly, those facts do NOT = QED/argument over. However, they do suggest that all doomsday talk about software patents is hyperbolic at best. In the end, we need to get beyond the convenient myths about large companies and patent trolls, and start having more honest discussions.

A couple more points on that topic:

By “costing hundreds of billions” are you referring to the money that inventors have gotten in royalties and our payments for infringement on their inventions? In some cases these are going to patent trolls, but just as often that money goes to fund new R&D projects in companies large and small.

And, you seem to ignore companies like i4i, Tivo, and Stamford University, who have gotten multi-billion dollar settlements from the likes of Microsoft and Comcast. If it weren’t for its patents, the cable companies would have stolen all Tivo’s ideas and driven them right out of business…

As for seeking investment, when VCs are assessing risk they are more importantly assessing the risk that a larger competitor can simply steal your idea. Therefore your ability to protect it, most effectively throught patents, is actually critical to small firms getting investment.

Rekrul says:

Re: Re: Re:2 Re:

Clearly, those facts do NOT = QED/argument over. However, they do suggest that all doomsday talk about software patents is hyperbolic at best. In the end, we need to get beyond the convenient myths about large companies and patent trolls, and start having more honest discussions.

It’s not always large companies that are the problem. They can get hit with patent lawsuits just as easily as small companies.

Selling something on your website and have an idea for a better shopping cart system? Better make sure you pay the license fee to the company that owns the patent on digital shopping carts. Want to add a one-click buy option? Better license it. Want a system that remembers purchases and suggests similar items? Find out who owns the patent…

It’s virtually impossible to write any piece of software today, or even design a web site without violating someone’s patents. The question is whether or not you’ll get sued over it.

Remember the mess with LZW compression patent and the GIF file format?

And, you seem to ignore companies like i4i, Tivo, and Stamford University, who have gotten multi-billion dollar settlements from the likes of Microsoft and Comcast. If it weren’t for its patents, the cable companies would have stolen all Tivo’s ideas and driven them right out of business…

Yes, that’s a possibility, but consider this;

If not for the patents, perhaps the money spent on court cases and licensing would have gone into R&D to make even better DVRs. Not only that, but perhaps if other companies had started producing superior products, it would have inspired TiVo to add even more features to their own products in order to stay competitive.

Rekrul says:

Re: Re: Re:

Yeah…personally, I think these purported “patent thicket” problems are more hyperbole than reality. For all the doomsday scenarios, I haven’t seen any related slowdown in innovation and growth in the software/tech industry.

How about the fact that the next version of Microsoft Word will ship without the custom XML editing functions because of a patent lawsuit?

Anonymous Coward says:

This won’t hurt much. Most programmers and CS people I know completely ignore and are against software patents anyway.

And it’s incredibly easy (yet expensive) to retaliate against a patent lawsuit. All you need to do I either undermine the other party’s claim by proving their patent is obvious (most of the times they are) or stock up in patents yourself and start retaliating.

It’s a ton of wasted effort if you ask me.

Darryl says:

Hows the war on patent reform going ? not well !!

Ofcourse, if you dont want or cannot use some patented idea, you are totally free to invent something better.

Patents do not stop technical innovation, in fact it’s hard to find examples where patents have stiffled innovation.

Real innovation, comes from youre own brain, not from looking at what others do and copying it.

Just because something is usefull does not give you the right to copy it, like copyright patents protect the inventer of the idea.

Copying a patent is not inventing it, it’s not innovation it immatation.

Mabey you dont want or cant use MPEG encoding, so you might have to come up with youre own encoding method. Ogg Vorbis for example.

This is an example where patents have increased innovation, just as the steam engine was patented by Watt, did not stop people developing better steam engines, steam turbines, internal combustion, or electric motors.

and of course if the idea was not good, and valuable then you would not want to use it, patented or not.

The fact you DO want to use it, means it has some inherent value to you, thats why you want to use it. Therefore the inventor of that thing that provides value to you, is rewarded for it.

Mabey you were trying to think of a way of doing something, ok !.

You see someone else’s patented idea that does exactly what you were working on. So (for you) it’s ok to drop youre work and just use the other guys invention. After all it’s so much easier than coming up with youre own method.

But possibly, if you had of continued, and persisted to solve the problem yourself then you may of invented a better method. Making the original patent redundent.

Thats how the world works, progress is not made by copying or stealing someone elses idea, if that was the case we would all be still using Watts steam engines.

So James watt might be sitting happy making lots of money from his patent, until someone comes along and invents a steam turbine, or the internal combustion engine. And watt’s invention loses value.

That how it works, and it does work, we get technical progress, and there is good incentive for progress to continue.

thats what copyright and patent laws are for, they do promote advancement in arts and technology, by making people come up with better things, and not just using something someone else came up with.

But it appears patents are winning, and patent reform is losing ground.

Thats not even getting into why software should be exempt from patents in the first place.

What’s different about software and anything else?

And dont tell me it’s “not physical” because it IS physical just as much as a steam engine is.

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