Software patent

from Wikipedia, the free encyclopedia

A software patent is a patent that seeks protection for one or more computer programs , either directly as a claim or indirectly as an essential means intended for the use of the claimed product or process. The term software patent is not only widespread among opponents of the patenting of computer programs. Computer-implemented invention and computer -aided invention were proposed as counter - terms in the context of the deliberations on a European directive on the patentability of computer-implemented inventions. A generally accepted precise definition of the term has not yet been established.


Traditional patents relate to technical inventions , that is, to problem solutions, the validity of which must be checked in experiments with natural forces. Software patents, on the other hand, refer to ideas whose effectiveness can be proven through logical inference alone. Borderline cases are processes in which the traditional control using mechanics , hydraulics , pneumatics or electronics is replaced by a control with a computer program .

There is no legal definition of the term software patent . Software patents are understood by some authors as protection of the concept, e.g. B. "Application of patent law for the realization of a conceptual protection of programs for data processing systems" (Rebentisch). Others see software patents as "protection of ideas" for software . Critics like Richard Stallman also speak of software idea patents. It must be emphasized that the distinction between software concepts or ideas and software as such is artificial for developers if the focus is on the technical implementation. Regardless of the conceptual idea, software, like mathematics, can be understood as a collection of abstract concepts.

According to German and European practice, a computer-implemented invention is patentable if it makes a technical contribution .

The "literary theory" is often represented in order to overcome the communication barrier:

Accordingly, it is very similar with software as with literary works. It is not the plot that is of interest to the writer, nor can the narrative plot be clearly separated from the narrative, what matters is rather its successful writing. The patenting of software is therefore perceived by IT professionals to be just as absurd as the patenting of a narrative action. And just as the patentability of a narrative is given when patents are granted on actions, so is the case with software patentability when patents on abstractions (concepts or ideas) are granted in software. It is generally understood that a patent refers to an underlying abstraction. Whereby the protection of the abstract prevents the implementation of the concrete. To make this clear, critics also use the term software idea patent.

For the realization of a concept protection, if it is necessary, the patent law is considered by many practitioners as unsuitable.

Software patents are not officially classified as such in any country, which makes it difficult to compile statistics on their distribution.

Legal situation

The possibilities for patenting software are regulated very differently internationally. Basically, software is also by the world's copyright / copyright protected. Copyright protects a specific implementation , the process itself on which a program is based, but only to a very limited extent. So it is possible to implement the same idea in another program without breaking the copyright. It is disputed whether such a protection interest is justified and whether patent law is the economically appropriate instrument for the assumed protection gap.

Historical development

How property protection for computer programs should be designed was not regulated for a long time. Ada Lovelace's first program for calculating Bernoulli numbers with Charles Babbag's Analytical Engine is considered a mathematical masterpiece. Babbage himself despised patents and refused to patent any of his numerous inventions. The conversation with Babbage showed even then that programming mathematical algorithms requires a lot of technical considerations. The patenting of the Bernoulli number program was probably never an issue.

Konrad Zuse, on the other hand, submitted his patent application Z 23 139 IX / 42m on April 9, 1936 for a "method for the automatic execution of calculations with the help of calculating machines" as an abstract operating method for his Z1 , which he dropped on November 4, 1937. Probably the first software patent application with a functional patent claim for a real machine. In accordance with the requirements of the patent office, Zuse disclosed the overall structure and algorithms of the machine Z3 for the first time in the following patent application Z 26 476 of July 16, 1941, which enables today's experts to understand all of its essential properties.

On January 2, 1968, France codified in Loi n ° 68-1 Article 7 for the first time the exclusion of "programs ou séries d'instructions pour le déroulement des opérations d'une machine calculatrice" (computer programs) from the concept of industrial inventions. At the same time, this exclusion from patentability was enshrined in the US examination guidelines for patent applications, but subsequently by Gottschalk v. Benson again relativized with regard to Section 101 of the US Patents Act 1952.

In 1969, under the pressure of ongoing antitrust proceedings, IBM decided to decouple software and related services from hardware leasing agreements and to provide software copyright protection in conjunction with license agreements instead of patent protection.

Agreement on Trade-Related Aspects of Intellectual Property Rights

There are two different interpretations of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) by proponents and opponents of software patenting.

  1. TRIPS prohibits software patents: Critics point out that non-traffic patent rights unreasonably impair the exploitation of copyright. With reference to Article 10 of the TRIPS and Article 4 of the WIPO Copyright Treaty (WCT), it is still questioned whether a patent protection may fill an alleged gap in copyright protection.
  2. TRIPS calls for software patents: Another legal opinion emphasizes that Article 10 TRIPS and Article 4 WCT only refer to copyright. However, Article 27 TRIPS under patent law contains the minimum requirement that a patent must be granted as soon as there is an invention in any technical field that is new, not obvious and industrially applicable, whereby the granting and exercise of patents does not discriminate according to technical field may be. The EU software copyright directive mentions that this directive, which makes it clear that software is protected by copyright, does not exclude patent protection.

Both lines of argument are extreme positions, which are not considered serious by the respective opposing side, because many consider double protection through copyright and patent law to be possible and other TRIPS 27 only applicable if software is to be understood as a "field of technology" in the patent law sense. Furthermore, the concept of the invention must be clarified. To derive a legislative obligation to patent software from TRIPS 27 is highly questionable. In other areas, however, the formulation of TRIPS 27 has been used successfully in a lobbyist context.

United States

Since a ruling by the Supreme Court in 1980 (Diamond vs. Diehr), software patenting has been possible in the USA, at that time it had to be closely related to industrial processes, but this was softened in 1994 by the US PTO, the US patent office . In 1999 the federal appeals court ruled State Street Bank to extend patentability to business ideas. At the time, the Senate did not deal with the issue; the driving forces behind this development were exclusively patent attorneys or their clients in combination with the US tradition of developing law on the basis of previous court decisions.

With the Alice Corp. v. CLS Bank Int'l from 2014, the Supreme Court made it clear that ideas are not patentable. Only technical implementations of ideas are patentable.


Since the European Patent Convention (EPC) of 1973, on which the national law of the signatory states is gradually based, the substantive patent law within the member states of the EU and other states has been uniformly regulated. Article 52 of the EPC contains a list of non-patentable subject-matter which is not considered to be an invention ("fiction"); including "plans, rules and procedures for intellectual activities" and "programs for data processing systems".

“Programs for data processing systems” are excluded from patentability under Article 52 (2) EPC and are not subject to the concept of invention. From the restrictive formulation of 52 (3) to the objects and activities mentioned in 52 (2) as such , the European Patent Organization (EPO) derives the view that only software as such is excluded from patenting. This interpretation is controversial, as the term software in particular is not precisely defined as such and Art 52 (3) is to be interpreted in accordance with the other case groups mentioned.

The clause as such in Art 52 (3) was reinterpreted in the early 1990s to the effect that the exclusion only refers to software as such , but not to underlying concepts. A registered invention may therefore contain a computer program, but the subject matter of the invention must make a so-called technical contribution. The technical contribution is an indefinite legal term that has to be filled in by the case law. However, novelty and inventive activity do not necessarily have to lie outside the program, i.e. a new and inventive algorithm that, for example, controls a robot in an innovative way, is patentable. Article 28 of the Polish Patent Act, on the other hand, explicitly waives the unclear as such clause despite its accession to the EPC . Also, Article 6 of the Turkish Patent Act waived explicitly to as such clause regarding computer programs.

Up until the mid-1980s, the European Patent Office ( EPA ) interpreted the agreement restrictively and did not issue patents on pure software inventions. In 1985 the EPO revised its Examination Guidelines and stated that only "non-technical" innovations were excluded from patenting. The definition of this technicality criterion is still controversial today. As a result, it was also possible to patent software. But it was not until the EPO decision IBM / Computer Program Product that the number of patents rose rapidly. The EPO Board of Appeal thus anticipated a revision of the EPC expected in 2000, which, however, was expressly rejected in the end at a diplomatic conference. Opponents of this development put the number of software patents granted by the EPO since then at over 30,000.

The European Patent Office orients its practice on the case law of its boards of appeal. The members of these chambers have judicial independence: according to Article 23, they are not bound by instructions for their decisions and are only subject to the European Patent Convention. The European Patent Convention does not provide for a granting practice “in accordance with the decisions of national European supreme courts”.

Recently, the EPO has taken a significantly more restrictive course. In the cases closed in 2005, 1,200 granted patents in the area of ​​software stand in opposition to 350 rejected ones. In the vast majority of cases, almost 6,000, the application was withdrawn by the applicant after the search or during the examination procedure. After a moratorium of several years, the refusals are increasingly in line with the decisions of national European supreme courts due to the exclusion from patentability under Art 52 (2) (c) EPC.

In a decision, the judges analyze the various methodological criteria that are used in the examination of software patents at the EPO and suggest a request to the EPO's Enlarged Board of Appeal so that a uniform case law can be created.

In October 2008 the President of the European Patent Office put four questions on the patentability of software to the Enlarged Board of Appeal. This takes up the inconsistent case law of the boards of appeal with regard to the evaluation of computer-implemented inventions within the meaning of Art. 52 (2) EPC. The Enlarged Board of Appeal has essentially confirmed the practice of the European Patent Office. The decisions, which at first glance appear inconsistent, would be based on a further development of the law that does not always have to be straightforward. Since the Enlarged Board of Appeal was therefore unable to find any conflicting decisions by the Board of Appeal, it denied the legal requirements of the reference and rejected it as inadmissible.

European Union

At the beginning of 2002 the European Commission proposed a new EC directive for “ computer-implemented inventions ” with the aim of harmonizing patent granting practice in the member states. The proposal was based on the EPO's controversial granting practice. On July 6, 2005, a large (95 percent) majority voted 648 out of 680 MPs against the directive on the patentability of “computer-implemented inventions”.

The EPO continues to adhere to and actively defend its Technical Board of Appeal doctrine. It has been running a web campaign for CIE since around June 2005 and has published a brochure on it.


The German Patent Act (PatG) is identical to European law in all essential points, in particular with regard to what is patentable.

Even more: After the opposition period has expired, European patents can only be voided before national courts for the country in question, and the national courts also decide in the event of patent infringement . Precisely because of the identity of the legal provisions, case law makes no difference in its decisions between German and European patents. The last instance for German and European patents in Germany is the Federal Court of Justice.

The exclusions from patentability mentioned in the EPC, in particular for applications relating to computer programs as such, can be found e.g. B. in § 1 of the German Patent Act again. According to German jurisprudence, the technical nature of an invention - the prerequisite for patenting - is characterized in that the invention makes use of the forces of nature to achieve a causally foreseeable success. According to the jurisprudence of the Federal Patent Court and the Federal Court of Justice , which can now be described as permanent , the mere intended use of a computer is not the use of electricity as a natural force. In borderline cases, such as methods for optimizing the print path or for memory management, there were nevertheless controversial interpretations according to which, for example, a reduction in memory consumption already produces technicality.

However, the question of the technical nature of the patented object - i.e. whether it is of a technical nature - only plays a subordinate role in connection with software patents. Software is always somehow technical and therefore patentable. It is crucial that the invention is technical and makes a technical contribution , i.e. H. solves a specific technical problem with specific technical means and the solution is also new and does not result in an obvious way from the state of the art.

Here are a few examples:

A car engine control, e.g. B. to determine the ignition point, is a technical device and is - as a device or as a method - also available for patent protection. In the old VW Beetle there was a "vacuum unit" for this purpose, in which the vacuum moved a membrane via a hose to the carburettor, which in turn advances the ignition point at a higher speed (= stronger vacuum in the carburettor) via a mechanism.

Today you have an electronic ignition; The speed and many other things on the engine are measured electronically, and a computer or a microprocessor is programmed in such a way that it triggers the ignition spark at the right time according to the measured values.

For the example, there is now a technical idea to save fuel by setting the ignition point slightly differently. In the past, another vacuum unit was designed for this purpose, which has exactly the desired effect. Today you change the software for this. In both cases, the same technical problem (saving fuel) is solved with the same means (better ignition timing). Such an invention is still patentable, even if it is realized today through software. The creation of software "as such" (e.g. according to IEC 61131-3 ) is viewed from a patent law perspective as banal / trivial , which can only establish "property rights" according to copyright standards. The creative or inventive activity from a patent law perspective lies exclusively outside of the program development.

In contrast to this, software for finding biblical passages, for astrological predictions or for searching for spelling / typing errors does not solve any kind of technical problem and therefore does not implement an invention. It is not available for patent protection.

Where the exact limit is, i.e. H. According to the BGH, the question of whether a technical problem can be named that is solved by the invention is a matter of when an invention opens up for additional patent protection. A remarkable decision by the Federal Court of Justice related to a medical device (magnetic resonance imaging scanner ) in which the software determined the utilization of the device from the operating data. According to this data, the operator was then shown and calculated whether the acquisition of a new device or even a second device is more economical from an economic point of view, taking into account wear, expected repair and maintenance costs and much more. This is a technical device, technical data was recorded and evaluated (using software), no different from the engine control. However: the problem that was solved with the alleged invention was not of a technical nature, but of an economic nature, because it is all about the decision as to whether a replacement or a second device should be purchased or not. The BGH therefore found that something like this was not an invention, and it refused to grant the patent.

The provision that “software as such” is not patentable is to be seen in precisely this context: It is not sufficient that there is software that is undoubtedly technical in itself: it must also “solve a technical problem with technical means” Patent can be granted.

According to a judgment of the X. BGH Senate, a teaching on data processing may be patented “as a computer program or in any other form” if it is “characterized by a peculiarity that justifies patentability, taking into account the objective of patent protection.” Resolving this decision the 1st BGH Senate that the copyright law for works of literature (weekly magazine “Focus”) regulates “the powers and restrictions flowing from copyright law in principle” . TRIPS Art. 10 Para. 1 and word for word WIPO Copyright Treaty Art. 4 guarantee authors of computer programs the same international protection as authors of works of literature, whose normal exploitation of their works according to TRIPS Art. 13 and WIPO Copyright Treaty Art. 10 neither impair nor the legitimate interests of the right holder may be unreasonably violated. In accordance with this international agreement, the European Union decided on the copyright protection of software with Council Directive 91/250 / EEC of May 14, 1991 on the legal protection of computer programs . The directive was newly codified as Directive 2009/24 / EC of April 23, 2009. Article 4 of the Directive assigns the reproduction, distribution and modification of a computer program to the author as exclusive exploitation rights. The guideline is implemented in Germany by § 69 c UrhG. The exploitation rights enable the author to generate income by granting usage rights (§ 31 UrhG) to the computer program. Within the scope of a patent, only the patent owner is entitled to use the invention (§ 9, p. 1 PatG). The possibility of the author to freely exploit his computer program by granting usage rights is therefore limited if the computer program is covered by the scope of a patent. To clarify the contradicting decisions of the Federal Court of Justice, the Great Senate for Civil Matters at the BGH has not yet been appealed, and the failed guideline for the protection of computer-implemented inventions could not resolve this conflict of standards .

Anyone who deals with technical issues in Germany (commercially) must - as always - make sure that they do not use any third-party, patented invention. This means that he does not infringe any patent, even if he “only” creates software. However, anyone who uses software outside of technology - which does not serve to make natural forces manageable - still has to deal with patent law until the limits of patentability are more specifically defined by the legislative or legal side. Since these limits have only recently become more clearly defined, one or the other patent will definitely still be in force that does not correspond to this guiding principle. Such a patent can be sued for void with a high degree of success, provided that the patent owner dares to use it at all and to warn someone about patent infringement, because an unjustified warning of property rights can also be expensive.

The first example (engine control) also shows why this situation is unsatisfactory for inventors or patent applicants:

The patent right is an industrial property right, i. H. a private person cannot infringe a patent. If you want to save gasoline in your car by changing the ignition timing, you used to have to buy a new vacuum unit. Today he just needs new software. Under certain circumstances, he can download this himself from the Internet, just as he used to be allowed to put together the vacuum unit himself without paying license fees. But that doesn't work if the software itself is under copyright protection. Even if the import of software with which an invention is realized may still be difficult in cars today: In many other areas it is child's play, and the tendency for more and more inventions to be privately installed by end users is quite foreseeable. It is therefore feared that the patent proprietor will go away empty-handed in more and more cases, especially when the person who is involved in the distribution of software does not "use" the invention himself (and therefore cannot be sued for patent infringement) as does someone who does sold a book about this invention.

On the other hand, it is absolutely inconceivable that every programmer or the company he is programming for initiates a research on the state of the art for every programming step, which is regularly associated with considerable costs. However, this would be necessary in order to be sure not to infringe third party software patents.

State of the debate

Protection versus blockage

Software patents are a lot more controversial than patents in general. Proponents argue that software patents definitely have an economic benefit, as they give the "inventor" a monopoly on time for the exploitation and implementation of his "idea". On the other hand, it is criticized that the long runtime is a major limitation, especially with software patents.

Proposals for a solution to regulate "software patents" separately can easily overshoot the mark. Presumably, with regard to inventions that can be realized with software, no further specification of what is patentable is required. More important would be more precise stipulations as to when in the life cycle of software a patent infringement, i.e. use of the invention, can be fulfilled and when not.

Confusion of terms

Occasionally, opponents of software patents try to replace the word “software patent” with “software idea patent” in order to make it clear that they do not mean narrow claims to individual works including all individual features. However, this in turn leads to other misunderstandings, for example questionable distinctions between “idea patent”, “use patent”, “implementation patent” etc. Other terms used around the year 2000 were ePatent and logic patent.

Industrial recovery

Proponents of software patents argue that software inventions also require research and investment. These should be protected, which is done in the industrial sector through patents.

The company Xerox is cited as an example , which should not have had much of the idea of ​​the graphical user interface, as this idea was immediately taken up by other manufacturers (for example Apple ) and they earned money with it.

According to the proponents, anyone who uses a graphical user interface or publishes programs for it would have had to pay license fees to Xerox for 20 years. Xerox alone would have determined the rules, and Xerox could also have arbitrarily decided to issue bans.

For the software patent opponents, this example is proof of how the free competition of many developers creates a greater macroeconomic benefit than is possible with innovation control by a single company.

Competitive situation

In Europe it is further argued that European companies have a competitive disadvantage, since the majority of software patents could already be registered by Japanese or US companies in their own country. There are already over 30,000 software patents in the EU, most of which come from these countries. In contrast, the effort for European companies to register patents abroad is much higher. It is therefore to be expected that European companies as a whole benefit least from the patentability of software.


The EPP MP Joachim Wuermeling referred to the Eolas vs. Microsoft as an example of a medium-sized company that is successful thanks to software patents.

As a better example, the Kodak vs. Serving Sun Microsystems . The photo specialist Kodak was paid 90 million US dollars after an initial claim for damages in the amount of one billion US dollars. This is noteworthy in that Kodak is not to be regarded as an IT company and had purchased (and not developed) the patents in question.

The former German Federal Minister of Justice Brigitte Zypries ( SPD ) points out in an interview that many fears of small and medium-sized software entrepreneurs are unjustified, because honesty protects against patent infringements: “ Basically, if he [the programmer] does not write off, the danger is very high little that he violates the rights of others. To be on the safe side, there is the free possibility of researching the state of the art in the patent office's databases. “Critics argue, however, that such statements testify to the minister's lack of expertise, since as a programmer you could very well infringe patents in the case of patenting ideas, even if not a single line of program code is copied or copied and the previous copyright law precisely this case of pure copying already forbids. Furthermore, a comprehensive search in patent databases is very time-consuming and costly and in practice almost impossible, at least for freelancers and small companies.

The proponents of software patents refer to the over 100-year existence of the patent system in the field of technical innovations. This is defined as a success by proponents, although there is no alternative system for comparison. Even small and medium-sized companies have repeatedly been able to prevent financially strong corporations from marketing a copy of the products at lower prices through patent protection for their products until the inventor's company can no longer financially keep up with the cutthroat competition. In the opinion of the proponents, there has so far been no objective argument why this success in the field of software will not occur.

The critics, on the other hand, demand proof of the necessity of software patents, after all the software industry has developed excellently in the past decades without such patents. In addition, they generally question the technical character of software in the sense of patents and argue that software is a purely intellectual work, pure logic. They also fear that cross-licensing would put monopolists in an absolutely superior position and simply ignore the patents of smaller companies until they can no longer raise the legal costs to enforce their patents.


EU banana republic campaign against software patents

A frequently cited example to explain the absurdity of software patents is that, figuratively, one would no longer patent “a certain mousetrap”, but every “means of catching rodents”. However, this example does not point to a specific problem of software patents, but makes it clear that patents on key technology in particular prevent or delay innovations in often significantly more cost-intensive developments based on them.

When patent law was introduced during industrialization , the purpose of patents was to secure a financial investment - such as a new factory building in which the new invention is mass-produced as a sales item. The production of software - that in principle means the storage of programs on data carriers, which are then sold - does not involve any risky investments.

Studies have so far failed to prove a necessity or a positive effect on the economy.

The critics of the software patents state that especially for small and medium-sized enterprises (SMEs) without a strong financial background as well as independent programmers the possibilities of economic activity would be extremely limited. Large companies can sue smaller ones for patent infringement, and since legal proceedings are expensive, especially in the US, small companies tend to give in because the judges are very often not software experts and patent infringement reports are better funded by large companies than by small companies. There is then the risk that the judges will decide in favor of the large company out of ignorance.

Patent research is very time-consuming and expensive. Nevertheless, even after a complex, long and uncertain licensing process, there is no guarantee that a patent will not be infringed, since software to be patented can be registered with the patent office for several years and is not known to the public before it is patented and published (Applies to the USA; so-called submarine patent ). The costs of a patent litigation in the USA, for example, would be between one and five million dollars (with extremely high amounts in dispute). If the amount in dispute were lower, it would be better to reach an out-of-court settlement in any case. The patent holders have an extreme advantage here, since patents are exclusive rights and therefore smaller companies, which have less access to the patent system, are severely disadvantaged. Through these prohibitive rights, accused, who cannot afford to go to court, could be forced to do anything by the patent owner, since a possible guilty verdict in a court case would not be economically viable.

In addition, research into previously granted patents could be very difficult. In this way it is possible to file patents under names which at first glance make no or even a false statement about the actual purpose and content. For example, a patent on data compression could be filed under the title “New Method for Managing Digitally Stored Data” - the search for “data compression” would probably not yield any useful hits. The fact that two companies in the USA - IBM and Sperry Corporation / UNISYS - had two valid patents for the same technology - the LZW compression used in GIF graphics - shows that research is so difficult that sometimes the patent office is too lose the overview.

Many voices also fear a long-term distortion of competition to the detriment of free software . Distortion of competition is something that the EU wants to prevent.

The protection of software under the Copyright Act is not formally affected by this . In reality, however, an expansion of patentability in the area of ​​software means a restriction of copyright protection:

  • Without software patents, an author has legal certainty that he can do whatever he wants with his self-written software, i.e. publish, license, etc.
  • With software patents, the author lacks legal certainty. Since software is usually complex and (like a book made up of many sentences) consists of many sub- algorithms , the probability that even small software projects could infringe a patent is very high. In software (unlike books) there is no automated way of checking whether all algorithms used (whether all written sentences) are included in a list of patented algorithms (patented sentences). It is not feasible to develop software bypassing existing patents, even if software can be written bypassing these patents, which admittedly accelerates development.

Thus, with software patents, practically the entire copyright protection that software enjoys is not reinforced, but rather placed on an insecure basis.

But it's not just economic considerations that speak against software patents. The patent system presupposes a technical contribution of the invention. This technical contribution is difficult to define in connection with software and represents a key point of the discussion. Software does not make use of clearly defined natural forces, but only the representations of information. Software can thus be viewed separately from the device (e.g. the description of an algorithm with pseudocode) and so it becomes particularly difficult when we are talking about pure software that should not be patentable, because software is always pure software. This contradiction can hardly be resolved and the proponents mostly ignore it. Data compression is also an example here. While it makes a more or less clear technical contribution in a transmitter, the same algorithm does not in a database because the mere management of data is not necessarily of a technical nature.

This fact also gives rise to the fear that software patents will open the door to the patentability of business methods.

FFII & Linux Association online demo (2005)

In September 2003 there were demonstrations in front of the Austrian and European patent offices in Vienna and Munich on this occasion : around 300 and around 500 people protested against software patents. On February 15, 2005, around 60 demonstrators protested in front of the Federal Ministry of Justice in Berlin , two days later around 250 demonstrators from all over Europe marched through Brussels . In 2005 there was a joint campaign against software patents from u. a. Attac , Campact , FFII and the Linux Association .

New Zealand

In New Zealand, for the revision of the patent law (" Patents Bill ") from 1953, the economic committee proposed in 2010 - for implementation by the end of 2012 - to include computer programs in the list of non-patentable inventions.

Examples of software patents

An example of previously granted software patents is the progress bar , which shows the progress of a process (for example, when starting a computer or when writing to a data carrier), this patent was valid for about eight years until IBM let it expire in 2003. Further examples are compression methods, such as the music compression format MP3 , which uses the knowledge of psychoacoustics to achieve a high level of compression. You do without part of the information that a person does not consciously perceive anyway. The Fraunhofer-Gesellschaft and other companies stopped licensing the format in May 2017 after the last patents in the USA had expired (MP3 had been patent-free in Europe since 2012). GIF graphics use the patented Lempel-Ziv-Welch algorithm ( LZW ) for compression in order to reduce the amount of data. Unisys's last national LZW patent expired on July 7, 2004 in Canada, but IBM also held a patent for the same process until August 11, 2006.

Some processes are also patented in the mail order sector. The electronic shopping cart , which many online retailers use to collect orders, is a patented business method from Sun. “One-click shopping” (a method of placing orders with just one click of the mouse) is patented by the online retailer . (EP 0 927 945 B1) Amazon also has a patent on the method for sending gifts to third parties via a web shop. The Gesellschaft für Informatik (GI), the Association for a Free Information Infrastructure ( FFII ) and the flower mail order company Fleurop filed an objection against this patent in 2004.

Another example is the patenting of the identification of files in P2P networks using hash values . The use of hash functions has been common practice since at least the 1970s. The patent is owned by Altnet in the USA. Microsoft Corporation also holds the patent on the process of double-clicking and activity reporting in instant messaging in the USA . At the end of 2008, the American company Cygnus Systems sued Apple , Microsoft and Google . The reason for the lawsuit is the company's software patent from 2001, which describes the preview of an image file in a reduced miniature view. The technology described is used extensively by the defendant companies as well as other software companies. The company also filed a patent infringement lawsuit against competitor NCsoft at Christmas 2008. This sells the online role-playing game Guild Wars ; was able to patent the technology of the online role-playing game in 2007 after years of attempts. In 2019 let the patent expire.

According to the critics, a few examples show the excesses a patenting of software can assume, which essentially relates to the automated implementation of a business method. In the USA, patenting of business methods is possible in contrast to Europe and Germany. When software is patented, it is therefore necessary for the patent offices to distinguish whether it is software that makes a contribution to the state of the art, i.e. further develops technical knowledge, or whether an attempt is merely made to automate a business method. In contrast to the USA, the case law in Europe and Germany on the previous patent system makes decisions based on this criterion. Examples from the USA often show that smaller companies deliberately patent something in order to then sue a larger and supposedly wealthier competitor who uses this technology.

Although the granting of software patents violates European law, the FFII estimates that the EPO has already granted 30,000 software patents. This also includes a number of disputed patents. The shopping basket, for example, was also protected by a European patent. In this context, opponents of software patents accuse the European Patent Office in particular of breaking the law. The EPO is funded by filing, registration and renewal fees, so liberal practice may be in the Office's short-term interest.

There are also companies that do not create innovations themselves, but only use the patent system to collect money; these are called patent trolls or patent sharks.

Trivial patents

Many of the examples cited by opponents of software patents belong to the category of so-called trivial patents , which were entered in the register due to inadequate testing, but which, in principle, are not protected. The famous progress bar patent is a typical example of such a trivial patent. Trivial patents exist in all areas of the patent system, not just in the area of ​​software patents.

Although many trivial patents would presumably fail in legal disputes, they can give financially strong companies an advantage in competition with small and medium-sized competitors. Even if the legal situation is clear, such companies are often not in a position to finance the costs necessary to defend against the unjustified lawsuit.

Since the patent issuing offices are also not obliged to pay compensation for damage caused by unauthorized patents, there is no systemic self-regulation that guarantees a thorough patent examination.

See also


  • K. Blind, J. Edler, M. Friedewald: Software Patents: Economic Impacts and Policy Implications . Edward Elgar, Cheltenham 2005, ISBN 1-84542-488-3 .
  • Gregory A. Stobbs: Software Patents . 2nd Edition. Wolters Kluwer, 2007, ISBN 978-0-7355-1499-7 .

Web links

 Wikinews: Software Patents  - In The News

Individual evidence

  1. Proposed directive on the patentability of computer-implemented inventions in the English language Wikipedia
  2. Judgment of the Cologne Higher Regional Court of April 8, 2005 Az. 6 U 194/04 : Authorization of computer programs: Limited protection of the "creator" of specifications for a software Principle: Rights according to § 69a UrhG can only be held by those who determine themselves implements developed tasks or tasks specified by a third party in a computer program. The purely conceptual specifications - for example from a commercial and economic point of view - are not "draft material" protected under this regulation, even if they are essential for the creation of a functional program. At most, you can claim protection in accordance with Section 2 Paragraph 1 No. 1 and 7 UrhG and then lead to co-authorship of the entire work.
  3. ^ J. Fuegi, J. Francis: Lovelace & Babbage and the creation of the 1843 'notes' . In: IEEE Annals of the History of Computing . tape 25 , no. 4 , 2003, p. 16-26 , doi : 10.1109 / MAHC.2003.1253887 .
  4. ^ Anthony Hyman: Charles Babbage: Pioneer of the Computer . Princeton University Press, 1985, ISBN 0-691-02377-8 , pp. 124 .
  5. ^ Konrad Zuse: Patent applications . ( [PDF; accessed on June 2, 2009]).
  6. ^ Raúl Rojas, Georg-Alexander Thurm: The patent application Z391 by Konrad Zuse . ( [PDF; accessed on June 2, 2009]).
  7. ^ C. Geiger, Reto M. Hilty : Breveter le logiciel? Une analyze juridique et socio-économique . In: Propriétés Intellectuelles . July 2005, p. 296-312 ( [PDF; accessed on May 22, 2009]). Footnote 14 with reference to USSC Gottschalk v. Benson, 409 US 63 1972.
  8. Gottschalk v. Benson in the English language Wikipedia
  9. ^ L. Johnson: A view from the 1960s: How the software industry began . In: IEEE Annals of the History of Computing . tape 20 , no. 1 (March), 1998, pp. 36-42 , doi : 10.1109 / 85.646207 .
  10. Swen Kiesewetter-Köbinger, Pacta sunt servanda, JurPC Web-Doc., Para. 135f
  11. so z. B. BPatG 17 W (pat) 69/98
  12. Alice Corp. v. CLS Bank Int'l 573 US (2014)
  13. Art. 52 EPC
  14. Figures of the FFII ( Memento of the original from September 8, 2004 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
  15. Decision of the British Supreme Court ( Memento of the original from September 29, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 236 kB) @1@ 2Template: Webachiv / IABot /
  16. G3 / 08 ( Memento of the original from October 7, 2010 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 128 kB) @1@ 2Template: Webachiv / IABot /
  17. ( Memento of the original from June 21, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
  18. Exclusions from patentability
  19. BGH Xa ZB 20/08: Dynamic document generation . April 22, 2010 ( [accessed on May 18, 2010]).
  20. BGH search for incorrect character strings (PDF; 135 kB) (see also (PDF; 100 kB) with the following decision BPatG 17 W (pat) 69/98 of March 26, 2002 ( Memento of the original of March 31 , 2002) December 2006 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. ) @1@ 2Template: Webachiv / IABot /
  21. BGH decision of October 19, 2004 - X ZB 34/03 Determination of profitability (PDF; 34 kB)
  22. BGH electronic payment transactions (PDF; 45 kB), BGH profitability assessment (PDF; 34 kB), BGH offering interactive help (PDF; 39 kB), BGH recording media (PDF; 87 kB), BGH prepaid telephone calls (PDF; 101 kB)
  23. Judgment on the search for faulty strings (PDF; 135 kB)
  24. Gies-Adler (PDF; 1.1 MB)
  25. Rasmus Keller: Software-related patents and the constitutional property rights of software authors from Art. 14 GG . Sierke, 2009, ISBN 978-3-86844-119-2 , pp. 9 and 14 ff . ( [PDF; accessed on March 10, 2010]).
  26. ↑ Unjustified warning of property rights (PDF; 51 kB) at the Federal Court of Justice
  27. cf. Signo funding campaign of the BMWiT for SMEs ( Memento of the original from August 5, 2010 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
  28. SIMSON L. GARFINKEL; RICHARD M. STALLMAN; MITCHELL KAPOR: Why Patents Are Bad for Software . In: Issues in Science and Technology . 1991 ( [accessed March 8, 2010]). Bryan Pfaffenberger: Open source software and software patents: A constitutional perspective . In: Knowledge, Technology & Policy . tape
     12 , no. 3 . Springer Netherlands, September 1999, p. 94-112 , doi : 10.1007 / s12130-999-1029-x .
  30. a b Software and Idea Patents in the European Union: Situation analysis and voting recommendation of the Association for the Promotion of Free Software  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF)@1@ 2Template: Toter Link /  
  32. ( Memento of the original from September 30, 2005 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF) @1@ 2Template: Webachiv / IABot /
  33. ( Memento of the original from December 4, 2008 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
  34. compare archived copy ( Memento of the original from December 9, 2004 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
  36. ( Memento from October 15, 2009 in the Internet Archive )
  37. Heise online
  39. Brigitte Zypries at ( Memento from June 4, 2004 in the Internet Archive ) on May 28, 2004.
  40. Network New Media e. V .: Protest against the decision of the EU Council of Ministers for software patents ( memento of the original from October 23, 2010 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
  41. ( Memento of the original from October 11, 2009 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
  43. ( Memento of the original from January 21, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF) @1@ 2Template: Webachiv / IABot /
  44. ( Memento of the original from January 21, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF) @1@ 2Template: Webachiv / IABot /
  45. Patent on data synchronization / version management filed under the name Method for aligning a data set displayed on a client data processing device with a source data set stored on a server data processing device ( Memento of the original from May 4, 2006 in the Internet Archive ) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
  46. Patent US4814746 : (IBM patent on data compression).
  47. Patent US4558302 : (Sperry patent on fast data compression and decompression).
  48. ^ Comment on the expiry of the GIF / LZW patent
  49. Small inquiry to the federal government on software patents
  50. Competition lie ( Memento of the original from December 28, 2009 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
  51. Open Source Yearbook 2004 - Between Software Development and the Social Model (PDF; 3.6 MB)
  54. BMJ: Patent Act §1
  55. ^ All Registered Sites . In: . FFII. Archived from the original on March 10, 2005. Retrieved February 13, 2014.
  56. ^ Commerce Committee, House of Representatives: Patents Bill. Government Bill. As reported from the Commerce Committee . 235-2. Wellington March 30, 2010 (English, Online [PDF; 3.8 MB ; accessed on November 23, 2017]). Especially page 5.
  57. patent EP0394160 .
  58. MP3 is officially dead: Fraunhofer has stopped licensing , from May 15, 2017; Accessed May 16, 2017.
  59. Fraunhofer IIS: License program for MP3 ends , Heise online from May 15, 2017; Accessed May 16, 2017.
  60. Patent EP0287578 .
  61. Patent US4558302 .
  62. patent EP0807891 .
  63. Patent EP0927945 .
  64. Patent US6594644 .
  67. US company sued Google, Apple and Microsoft for patent infringement  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Dead Link /  
  69. System and method for enabling users to interact in a virtual space . August 3, 2000 ( [accessed June 25, 2020]).
  70. ^ David Segal: Has Patent, Will Sue: An Alert to Corporate America. In: New York Times. July 13, 2013, accessed January 31, 2017 .
  71. Kathrin Werner: Fight the trolls. In: SZ. November 23, 2015, accessed January 31, 2017 .
  72. Lauren Cohen, Umit G. Gurun, Scott Duke Kominers: Patent Trolls: Evidence from Targeted Firms. August 21, 2016, accessed January 31, 2017 .
  73. James Bessen: The Evidence Is In: Patent Trolls Do Hurt Innovation . In: Harvard Business Review . November 2016 (English, [accessed January 31, 2017]).
  74. Patented Webshop ( Memento of the original from April 13, 2005 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. EP 0 807 891 has expired in July 2006 in all named states. @1@ 2Template: Webachiv / IABot /
  75. Thomas Fischermann: In the gray area . In: Die Zeit , No. 9/2005
  76. Christian Kirsch: Study: Patent trolls destroy billions every year. In: Heise Online. November 14, 2011, accessed November 23, 2017 .