Computer-implemented inventions

Open hood with hand and laptop

In the age of the Internet, smartphones and digitisation and as part of the 4th Industrial Revolution, it is impossible to imagine technology without software. Many of the latest innovations can be attributed to digital data processing. As a result, there is also an increasing proportion of patent applications filed with the DPMA relating to devices and methods (computer programs) for electronic data processing. Such inventions are known as program-related or computer-implemented inventions. These terms refer to inventions for which a computer, a computer network or another programmable device is used and which have at least one feature which is (at least partially) realised with a computer program.

The externer Link Patent Act stipulates that patents are granted for inventions from all fields of technology that are new and involve an inventive step. It also permits that patents are granted for computer-implemented inventions, but it excludes computer programs from patent protection if protection is sought for them "as such".

The Federal Court of Justice has developed a three-stage examination approach to examining computer-implemented inventions. During the first stage, it is clarified whether the invention can be assigned to a technological field. For fulfilment of this prerequisite, it is sufficient that the claimed method even implicitly teaches the use of a data processing system. The data processing system does not even have to be mentioned in the patent claim. Accordingly, there is only a low hurdle which can be easily overcome in the case of most computer-implemented inventions.

The second stage involves an examination in order to ensure that the computer-implemented invention is not affected by the exclusion from patentability. Exclusion does not apply if the invention contains instructions that serve to solve a specific technological problem by technological means. For example, a software invention used to solve a technological problem is not excluded from patent protection if its process is determined by technological conditions outside the data processing system.

It should also be mentioned that the examination according to the first two stages is carried out only on the basis of the patent application to be examined and regularly takes place without taking into account the state of the art. It serves as a kind of rough screening to filter out the cases in which a patent claim does not contain any technological instructions at all that can reasonably be used as a basis for the examination as to an inventive step.

And this finally brings us to the third stage. The computer-implemented invention must be examined as to novelty and an inventive step in relation to the state of the art. The examination as to the existence of an inventive step only takes into account those aspects of the invention which determine or at least influence the solution to the specific technological problem by technological means. If the computer-implemented invention successfully passes all three examination stages, it is patentable!

Example: Navigation device (display of topographical information)

When using an automotive navigation system, a topographical map is displayed depending on the vehicle’s current position and direction of movement. This example can be clearly assigned to the technological field and also represents the solution to a specific technological problem. The technological means used are the determination of the actual position of the vehicle and a computer program running on a processor.

Such a computer-implemented invention is patentable if it is new compared to the state of the art, not obvious to a skilled person and thus deemed to involve an inventive step. If the computer-implemented invention differs from the state of the art in this example only insofar as it uses a specific, appropriate projection of topographical information, then this is not part of the solution. In this case, it is part of an upstream selection of a cartographic representation appropriate for navigation purposes, which is either known to the person skilled in the art himself or herself or is given to him or her. Consequently, this aspect of the navigation device does not contribute to solving the technological problem by technological means and is therefore not taken into account in the examination as to an inventive step.

The Federal Court of Justice speaks of technological means for solving a specific technological problem if within the scope of the invention device components are modified or addressed in a fundamentally different way, if the process of a computer program used to solve the problem is determined by technological conditions outside the computer or if the solution consists precisely in designing a computer program in such a way that it takes into account the technological conditions of the computer.

Example: Finding and retrieving a specific information page on the Internet (web page display)

When browsing the Internet, users often wish to retrieve pages visited previously. For this purpose, an invention proposes that a user logs on to a start page, that the pages accessed from the start page are registered and that the sequence of the information pages accessed is finally displayed. Although this invention can be attributed to the technological field, it is excluded from patentability as a computer program as such. The achievement of this invention lies merely in the recording, storage and processing of user input on the user's computer by means of conventional data processing steps. There is no solution to a specific technological problem by technological means and the invention therefore constitutes a computer program as such, which is not patentable.

If, for example, as part of a computer-implemented invention a computer program reads values from a pressure sensor connected to it and uses them to control a valve connected to it, it is determined by external technological conditions. It thus uses a technological means to solve a specific technological problem.

A patent can therefore be granted for a computer-implemented invention if it provides a solution to the underlying technological problem by technological means, if it is new and involves an inventive step. However, a patent for a computer program that does not show any technological means for solving a specific technological problem will not be granted.

Current rulings on the above-mentioned examples:

  • Federal Court of Justice, X ZR 47/07, externer Link judgment of 26 October 2010 – „Display of topographic information” (available in German only)
  • Federal Court of Justice, Xa ZB 20/08, externer Link order of 22 April 2010 – "Dynamic document generation” (available in German only)

Further information on the patentability of computer-implemented inventions is available in the Examination Guidelines - The current version is being updated - a new version will be available soon

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: 16 January 2024