[Patents] technicity borderline caselaw

[PILCH Hartmut phm@a2e.de]

> > The question then is on how to set a limit between
> >     - ABS anti blocking system (brakes controled by a programme)
> >     - a printer which distributes cooking recipies in supermarkets to make
> > people buy more
> > 
> > Both "inventions" were granted a patent by the EPO. But clearly, the
> > second one should never have been considered as "technical" or
> > "industrial".
> > 
> > A new juridical theory is needed to create a distinction between the two
> > kinds of inventions (both in a certain sense have a technical effect). 
...
> The theory already exists and is in wide use in Germany.
> 
> The above printer invention is not technical, because the inventive core
> does not pertain to a new use of natural forces but only to a conceptual
> innovation.
> 
> For a theoretical explanation of the distinction together with tons of
> German caselaw, see Benkards patent law commentary of 1988.

One often quoted pair of German caselaw examples is the Federal Supreme
Court (BGH) decisions

        Antiblockiersystem (1980)
        Flugkostenminimierung (1981)

The first case (Antiblockiersystem) is an anti-blocking system, which
makes a new use of natural properties of tires, road surfaces etc and is
therefore patentable, although it can be implemented on known devices by
merely changing the software.  The software itself is not patentable and
could thus easily be free software.  Only the use of this software in a
car on the road would be patentable, and there is no jurisdiction on how
exactly this should be enforced.  Enforcement is an entirely distinct
matter that is decided at a practical level.  The question could arise,
whether the delivery of a suitable computer program to a car maker could
constitute a contributory infringement, but it would be perfectly well
arguable that it does not and that only the car maker (or, in a
programmable car, the car owner) is liable for infringement.

The second case (Flugkostenminimierung) is a system for optimising the use
of fuel in an airplane during flight. This patent application was
rejected, because the optimisation was based on an abstract calculation
concept which did not "make innovative use of natural forces for achieving
a causally overseeable effect" but rather just manipulated some known
parameters in a mathematically clever way.

There are many more cases that confirm this pattern of judging by the BGH.
A dramatic change was made only in 1997, induced by pressures from the EPO
and the lawyer community, which had fooled the BGH's specialist judge,
Dr. Mellulis, into believing in a very strange theory of his own making,
according to which the coding of low level computing commands is an action
that can be compared to the use of natural forces and therefore technical,
while basic computing concepts are non-technical.

Thus, the BGH's current line constitutes an unstable transition stage.  
It is not what the patent lawyers want.  It grants only patents on very
specific (uninventive) coding techniques, such as laid out in
"Logikverifikation" earlier this year.

Moreover, the BPatG decision of 2000-07-28 

        http://swpat.ffii.org/vreji/papri/bpatg17w6998de.html

lucidly criticises Mr. Mellulis' error, and, although he has the power to
overrule the BPatG, we hope that he can be convinced to return to the
well-established and well-founded German/European theory of technicity,
which by logical necessity excludes computer programs from patentability.

-phm