[Patents] Re: BGH authorises computer program claims

[phm@a2e.de (PILCH Hartmut)]

> > In this context, the recent BGH decision exhibits a rather obscure
> > assertion which might raise further debates: They say that if a
> > teaching expressed as a computer program is deemed to be eligible as
> > subject-matter of a patent claim, the "shaping instructions"
> > ("praegenden Anweisungen") of the teaching as claimed must serve to
> > solve a particular technical problem. Hence, there seems to be some
> > kind of a backdoor through which the old well-known and since long
> > officially abandoned "chore theory" might come in again. If there are
> > "shaping instructions" helping to solve a "technical problem", there
> > must also be another category of instructions not related to technical
> > concepts. If such other instructions are found to be "shaping", no
> > patent can be granted. It looks that now as if each patent application
> > related to a computer-implemented invention must pass such a test.
>
> At the same time, previous decisions like "Sprachanalyse" give up any
> possible restricting test, as observed correctly by Nack's article (and of
> course by Schoelch and Kiesewetter-Koebinger, see the list in
> http://swpat.ffii.org/stidi/korcu/).

Actually I do meanwhile think that Axel Horns is right on this point.
The current BGH decision is again more explicit about the necessity that
there be a technical teaching, and it tries a serious interpretation of
PatG 1 (= EPC 52).  It even suggests that the BPatG should reject the
disputed claims on grounds of lack of technical teaching and that the BGH
only wants to uphold a principle of "no discrimination against particular
claim forms, as long as the claimed object is a direct part of the
technical problem solution."

As said before, this text is quite convoluted, and the BPatG has usually
been very good at picking what it needs from BGH texts in order to arrive
at a decision in its traditional "restrictive" spirit.

Also, Mr. Clelland is right to ask me to refrain from personalising the
discussion.  Although the thinking and style of this decision reminds me
of Melullis, I am not enough of a graphologist to really identify it with
him.  It may just as well be the collective style of the 10th senate of
the BGH which has been formed during recent years.

-- 
Hartmut Pilch                                         http://phm.ffii.org/
Protecting Innovation against Patent Inflation      http://swpat.ffii.org/
95000 signatures against software patents       http://www.noepatents.org/