[Patents] BGH 1990 keeps EPO patents out of copyright's way

[phm@a2e.de (PILCH Hartmut)]

In 1990 the copyright senate of the German Federal Court made a
decision of principle on the separation between the domains of
software copyright and patents.   

         http://swpat.ffii.org/vreji/papri/bgh1-bs90/

It states roughly: 

  An operating system does not contain patentable inventions, because it
  serves only to control the computer and connected peripherals within
  the scope of functionality predetermined by the hardware layout.  The
  program authors however enjoy copyright protection, and even the EPO's
  recent (1986) decisions to grant patents for computer inventions do
  not change this, because the relevant patent claims, at least
  according to the interpretation of the EPO's Technical Board of
  Appeal, are not directed to computer programs as such but only to
  technical processes / computer inventions.  A computer program enjoys
  copyright protection in as far as it contains elements of individual
  creation which are not determined by technical requirements or
  algorithms but depend on the weaving-together (arrangement and
  implementation) of such elements through individual planning and
  imagination.  This "creative height" must always be assumed to be
  present in complex programs such as operating systems.

This decision is important, because it shows a way to keep software
free from EPO software patents.  You just assume that the EPO's
patents were granted within the spirit of Art 52 EPC and therefore
cannot pertain to anything that is within the realm of programming but
only to something technical which the EPO, perhaps rightly or perhaps
wrongly, found in there.

This is also a neat way to keep the border between copyright and
patent law clear and to protect the "intellectual property" of
copyright owners.  If "intellectual property", once acquired, is a
granted basic right with constitutional backing, as some see it at
least in Germany, then later destroying this right by means of patents
should be anti-constitutional.  The "Betriebssystem" decision confirms
this view by exemplarily restating the basic German doctrine about the
separation between different fields of IP which you also find in the

     Dispositionsprogramm (see final sections)
     http://swpat.ffii.org/vreji/papri/bgh-dispo76/indexen.html

decision. 

See also the reference in  

    Patent Jurisprudence on a Slippery Slope -- the Price for
    Dismantling the Concept of Technical Invention
    http://swpat.ffii.org/stidi/korcu/indexen.html

--
Hartmut Pilch                                           http://phm.ffii.org/
Protecting Innovation against Patent Inflation        http://swpat.ffii.org/
80000 signatures against software patents         http://www.noepatents.org/