Logic verification (decision)
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| Federal Court of Justice | |
|---|---|
| File number | X ZB 11/98 JurPC web doc. 72/2000 |
| Paragraphs |
Section 1 Paragraph (1) PatG (1981) Section 1 (2) No. 3 PatG (1981) |
| Keywords |
Technicality Electronic design automation |
| cited BGH decisions |
Chinese characters Side buffer |
| cited EPA decisions |
T 1173/97 computer program product T 935/97 Computer program product II |
| cited literature |
Melullis , GRUR 1998, 843 Tauchert, Mitt 1999, 248 Schmidtchen, Mitt 1999, 282 van Raden, GRUR 1995, 451 |
| Federal Patent Court | |
| File number | 17 W (pat) 1/96 CAD / CAM verification procedure |
| Paragraphs |
Section 1 Paragraph (1) PatG Section 1 (2) PatG, |
| cited decisions | BPatG GRUR 96, 866 "Viterbi algorithm" BGH Dispositionsprogramm |
| cited literature | Raubenheimer, CR 1994, 328 |
| DPA | |
| File number | DE 44 23 367.1-53 |
| Paragraphs | Section 1 Paragraph (1) PatG |
| Filing date | 4.7.1994 |
The decision logic verification X ZB 11/98 of the Federal Court of Justice (BGH) of December 13, 1999 was an important milestone in the patenting of computer programs. For the first time, the Senate discussed the exclusion from patentability of programs for data processing systems under Section 1 of the Patent Act, but without explicitly resolving this issue. The Senate limited itself to determining the technical character of the claimed process, without deciding the issue of "what is to be understood by a program excluded from patent protection as such [sic!]". According to this resolution, technical considerations cannot be excluded from patent protection because a proposed solution - apart from the processes that are carried out as intended in the electronic computer used - does without the direct use of manageable forces of nature and the possibility of producing technically suitable building blocks to advance otherwise through technical knowledge tries.
facts
The decision was based on a patent application dated July 4, 1994 for a method for hierarchical logic verification of highly integrated circuits .
A method for hierarchical logic verification of highly integrated circuits was claimed. The problem to be solved was to find a method in which circuits within chips and incompatible subcircuits can be compared purely by machine with the least possible storage space requirement and the shortest possible processing time. As prior art, the applicant referred to:
- R. Razdan: HCNC: High Capacity Netlist Compare . In: Proceedings of the IEEE 1993 Custom Integrated Circuits Conference; 9-12 May 1993 . 1993, p. 17.6.1-17.6.5 , doi : 10.1109 / CICC.1993.590742 . and
- M. Spreitzer: Comparing structurally different views of a VLSI design . In: Proceedings, 27th th ACM / IEEE Design Automation Conference; 24.-28. June 1990 . 1990, p. 200-206 , doi : 10.1109 / DAC.1990.114854 .
The process sequence consists in reducing the number of connections to be checked, with the consequence of a larger number of potentially equivalent sub-circuits with the same number of connections. In the claimed verification method, it is assumed that integrated circuits are generally structured hierarchically from subcircuits and that the logic plan and layout also have a hierarchical structure. This hierarchical structure makes it possible to describe subcircuits that are used repeatedly only once in detail and to access this description as often as required by means of references, so-called instances . A memory consists of several memory arrays, each with several memory cells . In the case of such a memory, the hierarchical logic plan only needs to consist of a single detailed memory array description, a single detailed memory cell description and the associated multiple references (instances). If non- isomorphic peculiarities due to the method occur in the hierarchical extraction method of logic plan and layout , then no direct comparison of logic plan and layout can be carried out in the cited prior art. The claimed method therefore carries out a transformation of the subcircuits with regard to their connections. Instances of these subcircuits are divided up, searched for, transformed and assigned to one another in several hierarchical levels. The transformations bring together isomorphic partial circuit descriptions so that fewer partial circuits have to be verified. This ensures faster processing.
Procedure
The registration was rejected by the examining body by resolution of October 13, 1995 on the grounds that the subject of the claim did not convey any teaching on technical action, because no technical means were used in the claimed process. It could also be done by a person using paper and pencil.
In the appeal to the Federal Patent Court , the applicant supplements the claim to the effect that the process is carried out by an electronic computer .
However, the 17th Senate agreed with the examiner that the process according to the patent claim is not patentable because it is not of a technical nature .
The BGH contradicted this and demanded that further substantive examination of the (technical) invention must be entered.
The registration has been withdrawn since November 1st, 2000 (before this further examination) due to non-payment of the annual fee.
Evaluation of the BPatG
The instances are data and the verification process is essentially a data processing that transforms this data in a certain way and arranges it hierarchically so that it can be compared. The Senate described the technical content of the data as an insufficient criterion to justify the technical nature of a teaching. The use of a computer with a known structure and construction or a writing instrument as a technical means does not give the verification process any technical character. The 17th Senate introduced a distinction between “technical” and “non-technical programs” based on the relevant BGH case law on technicality within the framework of Section 1 (1) PatG (1968). The legal complaint was approved with regard to a clarification of the delimitation criteria between technical inventions that should be accessible to patent protection and intellectual achievements that should remain free from patent protection, because the Senate was "of the opinion that also that based on technical considerations and with technical Large-scale processes have no technical character because they are limited to the simple processing of data ”.
Summary of the decision
The Senate identified as a (concrete) technical problem with the application, to find a method in which circuits with non-isomorphic hierarchies and incompatible connections of the subcircuits can be compared purely by machine with the least possible memory requirement and the shortest possible processing time.
The Senate explicitly identifies the request for protection as a claim to a program for data processing systems. The Senate also states that the Federal Patent Court has not dealt with this exclusion catalog, which is expressly regulated in the law but is not exhaustive according to the unambiguous wording of the law, but has only checked the technical nature of the subject of the application and denied it. With this justification, the rejection of the application could not endure. In order to evaluate the necessary technical character of the subject matter defined in the patent claim applied for, the Senate requires an overall consideration of all the claim features, but allows different weighting, if there are appropriate reasons, taking into account their context according to professional understanding.
The Senate also presents the technical nature of programs for data processing systems as a prerequisite for the patentability of the registered teaching. The Senate notes that the teaching applied for concerns an intermediate step in the process that ends with the manufacture of silicon chips by using the teaching to ensure that the components consist of verified circuits. According to their intended purpose, they are part of current technology. Although the proposed solution uses an intellectual concept, the subject of the application is not limited to this. The conceptual concept can only be implemented if the comparative variables are recognized, the comparison of which can be dispensed with according to the actual circumstances in the field of technology mentioned. In view of the nature of the products that the verification process is used to manufacture, this requires technical knowledge based on considerations that focus on physical and physical conditions. Consequently, the processing of data derived from technical parameters is considered a technical teaching if it is characterized by knowledge based on technical considerations and its implementation. This is also the case here. In the case of the “disposition program” to the Patent Act 1968, however, technical considerations were necessary as a mere auxiliary reason to delimit patentable teachings from computer programs.
The BGH also stated that the term technology in patent law should not be understood statically. Rather, it is accessible to modifications if technological developments and adapted patent protection require this. The industrial development has led to the fact that the work required to manufacture such technical components is largely no longer characterized by machine production, which requires the direct use of controllable natural forces. In any case, the design and the necessary tests in advance of the physical production of chips are computer-aided, which in this respect requires programs. This area cannot be excluded from patent protection because a proposed solution dispenses with the use of controllable natural forces and instead tries to advance the possibility of manufacturing technically suitable building blocks in some other way through technical knowledge.
The Senate left the open question of what is to be understood by a program excluded from patent protection as such [sic!] Because the teaching applied for was not excluded from patent protection according to any of the opinions selected from the literature.
Assessments of the decision
With the decision logic verification, the BGH caught up with the EPA and is in line with decisions of the American CAFC (e.g. State Street Bank v. Signature Financial Group ). The fact that the technology definition is not static, but "modifications are accessible if the technological development and an effective patent protection adapted to it require it" concerns in the present case in particular the feature "without the interposition of human intellectual powers", which in the required overall consideration for the question of Technicity no longer plays an essential role. The decision was made immediately prior to the EPC revision 2000, when it was planned to delete the exclusion clause "computer programs as such" from the law without replacement.
Logic verification is still about the “technical quality required for a program for data processing systems”, although the BGH expressly refers to the fact that Section 1 (2) PatG (1981) only precludes the patentability of data processing programs to the extent that they “as such “Protection is sought or - and this amounts to an examination and evaluation of the program content, which Section 1 (3) PatG (1981) does not want - its teaching is directed“ as such ”to other objects or activities mentioned in this paragraph. Regarding the technicality requirement, which it regards as decisive, the BGH states that it promotes a uniform patent practice for Europe that is also accepted elsewhere. With Section 1, Paragraph 2, No. 3, Paragraph 3 of the Patent Act (1981), however, the legislature withdrew the basis of the previous judicial norms and the content of Section 1, Paragraph 2, No. 3, Paragraph 3 of the Patent Act.
The question of the patentability of technical considerations raises the question of the patentability of human intellectual activity in general, which is not regarded as an invention by the European legislator. To abandon this barrier of patent law "would have the consequence that absolutely all results of human thought activity, as long as they only represent an instruction for planned action and can be causally overlooked, would have to be assigned technical significance. However, this would practically give up the concept of the technical, if the performance of human intellectual activity would be protected by patent law, the nature and limitation of which cannot be recognized and overlooked ”. With the protection of technical considerations, the research and development activity itself is placed under protection.
See also
- Software patent
- BGH " Seitenbuffer (decision) "
- BGH " control device for investigation modalities "
- BGH " Dynamic Document Generation "
- EPO G 3/08
- US CAFC “ State Street Bank v. Signature Financial Group ”
Web links
English language Wikipedia:
- en: List of decisions of the EPO Boards of Appeal relating to Article 52 (2) and (3) EPC
- en: List of judgments of the UK Courts relating to excluded subject matter
- USSC en: Gottschalk v. Benson
- USSC en: Parker v. Flook
- USSC en: Diamond v. Diehr
- USSC en: Microsoft v. AT&T
- US CAFC en: In right Bilski
Individual evidence
- ^ BGH disposition program
- ^ Klaus-Jürgen Melullis : On the patentability of programs for data processing systems . In: GRUR . 1998, p. 843-853 .
- ^ W. Tauchert: On the patentability of programs for data processing systems . In: Communications from German patent attorneys . 1999, p. 248-252 .
- ^ J. Schmidtchen: On the patentability and patentability of computer programs and of program-related teachings . In: Communications from German patent attorneys . 1999, p. 282-294 .
- ^ L. van Raden: The computer dove - considerations on the patentability of information-related inventions . In: GRUR . 1995, p. 451-458 .
- ↑ Andreas Raubenheimer: The more recent BGH case law on software protection under patent law . In: Computer and Law . 1994, p. 328-336 .
- ↑ from jurisprudence → Germany → logic verification softwarepatentschutz.de
- ↑ Jürgen Betten: Logic Verification - Note . In: GRUR . 2000, p. 498-502 .
- ↑ Alexander Esslinger, Jürgen Betten: Patent protection on the Internet . In: Computer and Law . 2000, p. 18-22 .
- ↑ Reimar König: Patentable data processing programs - a contradiction in terms . In: GRUR . 2001, p. 577-584 .
- ↑ Günther Schölch: Software patents without limits . In: GRUR . 2001, p. 16–21 (with a quote from the BGH disposition program).
- ↑ Günther Schölch: Patent protection for computer-aided design methods - a cultural break? In: GRUR . 2006, p. 969-976 .