In the age of Internet, smartphones and increasing digitalisation within the context of Internet of things, cloud computing, etc., it is no longer possible to imagine large parts of technology without software. Accordingly, many of the current innovations are made in the field of digital data processing – presently, about 10% of the patent applications filed with our office are software-related computer-implemented inventions. Those innovations have a minimum of one feature that is implemented using a computer program at least in part.
However, under the German Patent Act (Patentgesetz), programs for data processing units as such are expressly excluded from patent protection. The fact that a data processing unit is controlled via a program in order to achieve a certain result is therefore not sufficient for the program to be patented. In order to be patentable according to the case law of the Federal Court of Justice, the teaching claimed by the invention must comprise instructions for the solution of a specific technical problem by technical means.
Navigation system as an example
This is, for example, the case if the navigation system of a vehicle displays a topographic map depending on the vehicle’s position and direction of motion. Even if, for instance, device components are modified by the claimed teaching or if the execution of a data processing program used to solve a problem is determined by technical factors beyond a data processing unit, this is also regarded as technical means for solving a specific technical problem.
A technical idea alone is not yet an invention; it must be used as the basis to formulate a technical “teaching” following clear causal steps. This technical teaching must be described in the documents of a patent application in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art. Such a teaching can be patented as a technical invention if the generally applicable patenting requirements pursuant to Sections 1 to 5 of the Patent Act are met. The claimed teaching refers to the contents of the patent claims; in order to understand the patent claims, the description and the drawings must be consulted.
Example of a current ruling on understanding the claimed teaching contained in patent claims:
Federal Court of Justice, X ZR 117/11, judgement of 17 July 2011 – „Polymer foam“ (available in German only)
As a rule, we examine computer-implemented inventions (like all other inventions) as to whether they are obvious to a person skilled in the art. However, only those instructions are considered that determine or influence the solution of the technical problem. The other features remain out of consideration – in the above-mentioned example, this is the selection of a displaying method of cartographical information appropriate for vehicle navigation.
Accordingly, a patent can be granted for a computer-implemented invention if it contains a solution, formulated in abstract terms, to the underlying technical problem by technical means that is new and involves an inventive step. A patent will not be granted for a program without a technical context. This difference is also relevant for the question of which parts of a computer-implemented invention are protected by a patent following patent grant. The patent offers protection for a technical teaching formulated in abstract terms; however, no protection is granted to a specific program code – this is a matter of copyright.
Current rulings on the above-mentioned examples:
- Federal Court of Justice, X ZR 47/07, judgment of 26 October 2010 – „Display of topographic information” (available in German only)
- Federal Court of Justice, Xa ZB 20/08, order of 22 April 2010 – "Dynamic document generation” (available in German only)
Application documents for computer-implemented inventions
As a rule, the patent application must be in German. However, it may contain the established foreign-language technical terms from the field of data processing. In addition to or instead of structural features (circuit details), also operation-related and function-related data are allowed in the patent claims.
The description may be supplemented by diagrams which concern the operational steps of data processing. It may include a data flow chart as well as a program flow chart. Short excerpts from a program for data processing units in a customary, exactly defined program language may be permitted in the description.
All forms and information you need are available under forms.
Last updated: 20 October 2020