[Patents] BGH authorises claims to computer programs

[phm@a2e.de (PILCH Hartmut)]

We have meanwhile received information which makes it clear that the BGH
revoked the BPatG decision

        http://swpat.ffii.org/vreji/papri/bpatg17w6998/

and decided, using convoluted wording (double negations etc), that
computer programs can be claimed directly, if there is a reference to a
technical problem in the claim wording (similar to EPO "further technical
effect").

Judge Melullis who was apparently the main author of recent BGH decisions
has already been quoted in

        Moses, the 10 Exclusions from Patentability and "Stealing with
        a Further Technical Effect"
        http://swpat.ffii.org/stidi/epc52/moses/

with bonmots like "we cannot deny a patent just because the applicant
decided to advance the progress of a technical art with means other than
the immediate use of controllable physical forces".

In recent conversations with German Patent Office representatives,
everybody I met told me that the German legal system would not allow silly
things like the EPO's T1173/97 (further technical effect justifies claim
to information work) to happen, because the it would be unacceptable to
grant a patent for an informational representation of a teaching, such as
a patent description or a computer program.

Now the unacceptable has happened, and although the BGH decisions uses
convoluted wording to hide what it did, the gist of the verdict is again
even more radical than the parallel at the EPO.

The work of lawcourts is to conserve, not to innovate.

Melullis has done another great disservice to the credibility of the BGH
and of the legal system as a whole.

Now there is no longer any lawcourt below the constitutional level to
which we can turn for help in Germany.  The people at BPatG of course know
better and may continue to resist, but their decisions can be overturned
by BGH/10 any time.

----------------------------------------------
On Sat, 1 Dec 2001, Axel H Horns wrote:

> The "Frankfurter Allgemeine Zeitung" (F.A.Z.) reports in today's
> edition of 2001-12-01 on page 23 that the German Federal High Court
> (BGH) has made a decision in X ZB 16/00 on October 17, 2001. The case
> had been rejected by the Federal Patent Court under case number 17 W
> (pat) 69/98:
>
>   http://www.jurpc.de/rechtspr/20000195.htm
>
> The wording of the F.A.Z. article is somewhat obscure so that I still
> have no idea of the ghist of the decision. Maybe that the BGH prefers
> to walk in circles, now emphasizing the role of the "technical
> problem".
>
> I do not have the full wording at the time being. It is a shame that
> the rather poor and rudimentary web site of the BGH does not even
> bring a press statement on that matter, not to speak of the full text
> of the decision:
>
>   http://www.uni-karlsruhe.de/~BGH/index.html
>
> Axel H Horns
> Patentanwalt
>
> --
> Patentanwalt Dipl.-Phys. Axel H Horns    e-Mail horns@ipjur.com
> Web www.ipjur.com  Voice ++49.89.30630112  Fax ++49.89.30630113
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