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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Thursday, November 25, 2004Germany: Multi-Partisan Draft Resolution concerning Patentability of Computer-Implemented Inventions.The FFII e.V. has obtained a draft version [in German only, sorry] dated November 10, 2004 of a multi-partisan resolution of all four parliamentary groups (Social Democrats, Greens, Christian Democratic Union plus Christian Social Union, and Liberal Democrats) to be tabled to the plenary of the lower chamber ("Bundestag") of the German Parliament later this year or early in 2005. Heise Newsticker reports that a compromise text has now been worked out which allegedly differs only slightly from the draft version as published by the FFII.
Basically, the draft resolution supports that computer-implemented inventions should be patentable. However, the parliamentarians are unhappy with the EU Council's version and want particularly to see the underlying concept of "technicality" defined more precisely. Especially, the parliamentarians want to see definition(s) of technicality used by the German Federal Supreme Court ("Bundesgerichtshof", BGH) to be exported into the EU. However, the draft resolution is not unambigous so far as to which of the various definitions of technicality used throughout the years by the BGH should be taken as a basis for such undertaking. The anti-patent campaigners surely assume that it will be the phrase from the 1969 "Red Dove" decision which is also mentioned in the introductory portion of the draft resolution:"Technicality is to be attributed to a teaching for a methodical action utilising controllable forces of nature for achieving a causally predictable result which is the direct consequence of said utilisation of controllable forces of nature without interposition of action of human brain."But there also different approaches. For example, in the decision "Verification of Logic Constraints" the BGH concedes that "[...] a proposal for a solution concerning an intermediate step within a certain process [...] shall not be excluded from patentability just because of this proposal for a solution does not require direct utilisation of controllable forces of nature, provided that said solution seeks to push forward options for the manufacturing of suitable products ulterior by means of insights based on technical considerations. [...]."The item 4 of the draft resolution merely requests that the Draft Directive should be "Oriented towards the definition of technicality of the BGH" whatever that might mean within this context. Of course, the 1969 BGH attempt to define technicality is now widely seen as obsolete and outmoded as can best be demonstrated with regard tho the particular younger case underlying the "Verification of Logic Constraints" decision. There are no serious reasons why such a LSI circuit verification system should not be patentable as a stand-alone device but surely be patentable if claimed together with a chip production facility which clearly involves "controllable utilisation of forces of nature". The attempt of the anti-patent campaigners to curb the interference of patent law with computer-related inventions this way by defining a narrow concept of technicality is flawed in nuce. I am seriously in doubt about the chances that other European politicians will buy any of the particular German attempts to define the concept of "technicality". To the contrary, I would guess that in most other European countries there will be a strong tendency to keep the definition of this term open for new developments in future. The draft resolution in particular also suggests to drop computer program product claims in the EU Draft Directive.
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