Technicality

from Wikipedia, the free encyclopedia

Technicity is a term mainly used in legal language in connection with patents . In addition to novelty, inventive step and commercial applicability, the technical character of a patent application is another fundamental prerequisite for patenting.

meaning

The “technical character” has long been used as a criterion for separating patentable innovations from non-patentable innovations. For example, the representation of legible data was regularly certified as technical, even if this is done with pen and paper.

The technicality requirement follows implicitly from:

  • Section 1 (1 ) of the Patent Act , which determines patents for inventions in all fields of technology,
  • Section 3 PatG, which compares inventions with the state of the art
  • Section 4 PatG, which relates inventions to the state of the art
  • Section 26 (2) and (3) PatG, whichrequirestechnical members of the DPMA
  • Section 27 of the Patent Act, which assigns the duties of the examination board to a technical member
  • Section 29 (2) PatG, which orders the patent office to document the state of the art
  • Section 34 (7) of the Patent Act, which requires the relevant state of the art to be stated in the description
  • Section 43 (1) of the Patent Act, which for the assessment of patentability only determines the identification of printed matter for technical fields

definition

The Federal Court of Justice has tried several times to define the term technology:

"Technically, it is a teaching on systematic action using controllable natural forces to achieve a causally foreseeable success."

- BGH : Rote Taube 1969

"... to be regarded as patentable [is] a teaching on systematic action using manageable natural forces to achieve a causally foreseeable success."

- BGH : disposition program 1977

"The term technical invention can be formulated in such a way that it means the systematic use of controllable natural forces outside of human intellectual activity to directly bring about a causally foreseeable success."

- BGH : Rolling Department 1980

"If a teaching for a program for data processing systems is characterized by a finding that is based on technical considerations, a differentiation criterion that is also accepted elsewhere and promotes uniform patent law practice for Europe is given, which is the determination of the necessary technical character of a teaching for a program for Data processing systems allowed. "

- BGH : Logic Verification 2000

This technical term is not static, but rather modifications accessible, provided that the technological development and an effective patent protection adapted to it require this.

The EPO boards of appeal have not yet given a comparable specification . In the meantime, the EPO's major board of appeal declared in its decision G1 / 08 that the standard from the BGH decision Rote Taube from 1969 was in line with the term invention from the European patent convention.

The Legal Committee of the European Parliament formulated:

"In this situation, the formulation" a new teaching on the use of controllable natural forces under the control of a computer program and independent of the technical means necessary for the execution of the program is technical "seemed to us to be the most comprehensive and at the same time the clearest for the definition of what is technical is. "

- Michel Rocard : CII draft 2005

Historical interpretation

When the EPC established the catalog of exclusions to exclude programs for data processing equipment, the main users of data processing equipment were the telecommunications monopoly AT&T , the US military and the banks.

EasyTimeline generated an invalid graphic

The EPC followed IBM's decision in 1969 to market software as an independent economic asset separately from hardware and instead of patents, copyright in conjunction. Usage licenses. to provide for property protection. The wording of the exclusion catalog essentially followed the French model Loi n ° 68-1 Article 7 from 1968. The EPC did not distinguish between programs for telecommunications, utility programs, industrial automation or stock exchange transactions.

The technicality debate about software started the BGH judgment Dispositionsprogramm with its statement "Because the concept of technology also appears factually as the only useful criterion for differentiating intellectual achievements of humans, for which patent protection is neither intended nor suitable". The reasoning referred to the definition of the term technology from the decision "Rote Taube" from 1969, which concerned the repeatability (now § 34 Abs. 4 PatG ). The following was described as patentable: “A teaching on systematic action using controllable natural forces to achieve a causally foreseeable success” .

1985 in Germany initially only programs for data processing in § 2 UrhG were assigned to the protected works of literature, science and art, in France with Loi n ° 85-660 alle logiciel . In 1991, with Directive 91/250 / EEC, all computer programs were made subject to copyright protection without exception . France ratified this directive in 1992 in Loi n ° 92-597 partie I , Germany in 1993 with §§ 69a-g UrhG. In the BGH “Operating System” it was stated for the time before this amendment to the copyright law: “According to § 1 Paragraph 2 No. 3, Paragraph 3 PatG,“ programs for data processing systems ”as such are not to be regarded as inventions. This means that all computer programs of a non-technical nature are excluded from patent protection. However, this does not apply to programs of a technical nature. Operating systems of the present type, which are only used to control a computer and the connecting devices connected to it, do not represent technical programs in this sense ” .

Only since the decision to search for faulty character strings did the tenth senate of the Federal Court of Justice explicitly differentiate between the requirement of technicality according to Section 1 (1) of the Patent Act and the exclusion catalog according to Section 1 (3) and (4) of the Patent Act, which it does in the decisions on electronic payment transactions, profitability assessment and offering interactive help has confirmed. In order to be patentable, however, the BGH still demands technical means to solve a specific technical problem.

The importance of technicality for the sole separation of non-patentable and patentable innovations has been increasingly called into question since the debate about computer-implemented inventions in computer programs. The CFPH decision of the Royal Courts of Justice describes the term “technical” as “useful servant but dangerous master”. Melullis , too, calls the “turning to the discussion of the term technology unhelpful, because here the dispute about a less clear term such as software as such is shifted to another term that is just as unclearly defined and deliberately subject to dynamic development, such as technology then additionally loses its contour because of the necessary delimitation from the not so technical content ”.

The TRIPS agreement (as well as § 1 PatG since 2008) requires patentability “in all areas of technology”. A general technical area such as automation does not yet provide a specific technical problem; The specific problem of locking the brakes on a car is an example.

The unique selling proposition of the technology from the disposition program decision as an argument for the unlimited patentability has since been significantly restricted according to German case law.

Systematic interpretation

In the disposition program, however, it was stipulated in the same place: “The system of German commercial and copyright protection is based essentially on the fact that different, specially adapted protective provisions apply to certain types of intellectual services and that overlaps between these various ancillary copyrights should be excluded as far as possible. The patent law is also not intended as a catchment basin in which all intellectual achievements that are otherwise not legally favored should find protection. ”, Which legal certainty is also required by Article 14.1 sentence 1 of the Basic Law. When the disposition program was decided, the EPC catalog of exclusions was just coming into effect nationally. Copyright protection of programs for data processing systems had established itself, but was only legally determined nine years later with § 2 UrhG. A distinction between technical and non-technical programs was not intended. The EU directives 91/250 / EEC and 96/9 / EC on the legal protection of computer programs and databases do not differentiate between technical and non-technical programs or data.

TRIPS and WCT rather define all programs as “language works” according to the Bern Convention for the Protection of Works of Literature and Art , the normal economic exploitation of which must not be significantly restricted. BGH Gies-Adler makes it clear: “The copyright law regulates the authorizations flowing from copyright and their restrictions in principle conclusively.” It can be concluded from this that patent protection without statutory provision may not restrict the commercial exploitation rights of the authors of computer programs if such copyrights are followed § 69a UrhG exist. Differences in the protection provision according to the technical nature of the computer programs or their data cannot be recognized by law.

literature

  • Henning Behme: Technical contribution . In: iX . No. 10 , 2002, p. 3 ( heise.de [accessed on April 9, 2010]).

Individual evidence

  1. ↑ BGH “Typsatz” Ia ZB 10/64 of March 23, 1965; BGH “Identifying Disc” X ZB 10/74 of July 1, 1976; BGH “Record carrier” X ZR 188/01 of May 19, 2005.
  2. ↑ Technical Board of Appeal “Hitachi” T_0258 / 03 - 3.5.1, p. 6, paragraph 4.6 Archived copy ( memento of the original dated August 30, 2008 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. T_0531 / 03 - 3.4.3, p. 17 Paragraph 2.5 Archived copy ( Memento of the original from August 28, 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. T_0388 / 04 - 3.5.02, p. 6 Archived copy ( memento of the original from July 20, 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 / legal.european-patent-office.org @1@ 2Template: Webachiv / IABot / legal.european-patent-office.org @1@ 2Template: Webachiv / IABot / legal.european-patent-office.org
  3. ↑ a b BGH, decision of March 27, 1969 , Az. X ZB 15/67, full text.
  4. ^ BGH, decision of June 22, 1976 , Az. X ZB 23/74, full text.
  5. ^ BGH, decision of September 16, 1980 , Az. X ZB 6/80, full text.
  6. ^ BGH, decision of December 13, 1999 , Az. X ZB 11/98, full text.
  7. ↑ Tauchert on the concept of "technical invention" , JurPC Web-Doc. 28/2002, para. 17.
  8. ^ Decision of the large Board of Appeal of December 9, 2010 G 1/08 . Accessed November 21, 2018. Ground 6.4.2.1.
  9. ↑ http://www.europarl.europa.eu/meetdocs/2004_2009/documents/pr/565/565497/565497de.pdf DRAFT RECOMMENDATION FOR THE SECOND READING on the common position of the Council with a view to the adoption of the European Directive Parliament and the Council on the patentability of computer-implemented inventions (11979/1/2004 - C6-0058 / 2005 - 2002/0047 (COD))
  10. ↑ B. Grad: A personal recollection: IBM's unbundling of software and services IEEE Annals of the History of Computing, Volume 24, No. 1, Jan. – March 2002, pp. 64–71 doi: 10.1109 / 85.988583
  11. ↑ T. Haigh: "Software in the 1960s as concept, service, and product" IEEE Annals of the History of Computing, Vol. 24 No. 1, Jan.-March 2002, pp. 5-13 doi: 10.1109 / 85.988574
  12. ↑ WS Humphrey: Software unbundling: a personal perspective IEEE Annals of the History of Computing, Volume 24, No. 1, Jan – March 2002, pp. 59–63 doi: 10.1109 / 85.988582
  13. ^ Loi n ° 68-1 du 2 janvier 1968 on the brevets d'invention . ( gouv.fr [accessed May 20, 2009]).
  14. ↑ L. Tuomenoksa, W. Ulrich: "Problems of Programming for Shared Real-Time Systems" IEEE Trans. On Comm. Vol. 15 No. 1, pp. 5-10 http://ieeexplore.ieee.org/xpls/abs_all.jsp?arnumber=1089543
  15. ↑ M. Campbell-Kelly: "Think piece" IEEE Annals of the History of Computing, Vol. 24 No. 1, Jan.-March 2002, pp. 87-88 doi: 10.1109 / MAHC.2002.988588
  16. ↑ TM Stout, TJ Williams: "Pioneering work in the field of computer process control" IEEE Annals of the History of Computing, Vol. 17 No. 1, 1995, pp. 6-18 doi: 10.1109 / 85.366507
  17. ↑ GC Border: Digital computer based data acquisition and control software packages. IEEE Conference Electrical Engineering Problems in the Rubber and Plastics Industries, 30. April-May 1, 1990, pp. 29-31. doi: 10.1109 / RAPCON.1990.66465
  18. ^ L. Johnson: Creating the software industry recollections of software company founders of the 1960s. IEEE Annals of the History of Computing, Vol. 24, No. 1, Jan 2002, pp. 14-42 doi: 10.1109 / 85.988576
  19. ↑ G. Kolle: Technology, data processing and patent law - comments on the disposition program - decision of the Federal Court of Justice. 1977 Archived copy ( Memento of the original from April 16, 2004 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / swpat.ffii.org
  20. ↑ Loi n ° 85-660 du 3 July 1985 relative aux droits d'auteur et aux droits des artistes-interprètes, des producteurs de phonogrammes et de vidéogrammes et des entreprises de communication audiovisuelle.
  21. ↑ Loi no 92-597 du 1er juillet 1992 modified relative à la partie législative du Code de la propriété intellectuelle ( Memento of the original of March 30, 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 / www.dsi.cnrs.fr
  22. ↑ BGH “Operating System” I ZR 139/89 in JurPC 1991 Issue 1 ( Memento of the original from May 9, 2012 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. , Pp. 888-896. @1@ 2Template: Webachiv / IABot / www.makrolog.de
  23. ↑ Decision CFPH of the Royal Courts of Justice http://www.softwarepatentnews.de/pdf/ch2005app0009.pdf
  24. ↑ K.-J. Melullis: A few selected problems in patent law from a German perspective. OJ EPO Special Edition 2, p. 184ff http://www.european-patent-office.org/epo/pubs/oj007/04_07/special_edition_2_judges_symposium.pdf
  25. ↑ BGH I ZR 117/00 of March 20, 2003 http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=26996&Frame=1
  26. ^ Gerhard Schricker: Copyright: Comment. 3. Edition. Beck, Munich 2006, ISBN 3-406-53783-9 , before Sections 44a ff, No. 14a with further references.
  27. ↑ Thomas Dreier, Gernot Schulze: Copyright Act: Copyright Perception Act, Art Copyright Act; Comment. 2nd Edition. Beck, Munich 2006, ISBN 3-406-54195-X , before §§ 44a ff. No. 7 with further references

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