Patentability Issues in the Annual Report 2009 of German Federal Patents Court

The Annual Report 2009 of the German Federal Patent Court (Bundespatentgericht) has just been published. It covers the Court's most important rulings of 2009 regarding patents, utility models, designs and trademarks, as well as an overview of its business situation. The (shortened) English version of the Report is given on pages 126 to 194. In regard to one main focus of this blog, the section on computer-implemented inventions and the state of the debate on their patentability (i.e. the German "technical character" doctrine) appears to be the most interesting section of the Report. On the Court level, this debate is mostly lead between the Federal Patent Court (BPatG) and the Federal Court of Justice (Bundesgerichtshof, BGH), especially between the BPatG's 17th Technical Board of Appeal under Chief Judge Dr. Fritsch and the BGH's Xth Civil Panel under Chief Judges Dr. Mellulis, Scharen and Prof. Meier-Beck. It is not a secret among practitioners that the second-instance BPatG follows a more restrictive approach on patent-eligibility and often rejects patent applications due to lack of technical character, while the third-instance BGH tends to be more liberal - especially in its latest decisions - and quite regularly reverses or remands BPatG decisions. As the Report only covers BPatG case law from 2009, the BGH's current somewhat differing approach may be exemplified best by the latest decisions X ZB 22/07 of 20 January 2009 and Xa ZB 20/08 of 22 April 2010 (see my related posting here, and here, respectively). Especially decision X ZB 22/07 ("contol device for examining modalities"), which reversed the BPatG's decision due to wrong reasoning, has been interpreted as a convergence towards the EPO’s approach of assuming that executing a computer program on a computer is sufficient to render the claim technical (see here, here, here, or, relating to this year's EBoA G3/08 opinion, here and here) ...Zum vollständigen Artikel

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