German High Court Issues Ruling Validating Software Patents

Slashdot has a story submitted by prolific software patent critic, Florian Mueller. It links to a post on his blog with many more details about this troubling ruling in the EU’s largest member state. Mueller basically likens this case to the Bilski case currently before the Supreme Court in the US. At the heart of Bilski are questions about the tests applied by judges when a patent is contested to determine if it is valid.

In a ruling of April 22, whose details have now been published (original document in German or EndSoftPatents page with links to automated translations), the highest German appeals court in matters of civil and criminal law overruled the country’s highest patent-specialized court and decided that a client-server software for the automatic generation of structured documents (such as XML or HTML) is an example of a patentable software invention. The case is remanded to the Federal Patent Court, which will now have to uphold the patent unless some other reason for its invalidity (such as prior art) is found.

To extend the comparison to Bilski, this ruling throughs out more involved tests about whether a patent details a new bit of machinery or effects a specific transformation of information or material. The remaining bar to patentability is how innovative the claim is. Mueller also points out the the EU and Germany more specifically had been against software patents traditionally.

In other words, if you do your job as a programmer right, then you create potentially patentable stuff all the time. This means an opportunity for you to obtain patents if you want to do that and can afford it, but it also means that your program could infringe dozens, hundreds or even many thousands of patents held by others.

Mueller doesn’t speculate about whether the Federal Patent Court is likely to overturn or uphold this ruling. There is a lot more detail in his post, laying out the historical context and the legal particulars involved and at stake.

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