To patent a software – possible or not?

von Dr. Meyer-Dulheuer & Partners LLP

Software patents have been a controversial topic for years. Often people say that it is not possible to patent software. That’s why we loud like to explain you today in detail, what it’s all about.

Why it is difficult in Germany to apply for a patent on software

In fact, according to the law text programs for data processing systems – in common language “software” – can’t be patented. That is because the legislator wanted to prevent that plain mental procedures like mathematical calculation formula are approachable for patent protection. The fact is that software can properly speaking be counted as applied mathematics. Therefore it is comprehensible that there should be a legal prohibition to patent software.

Software “as such” – small words, big effect

Nevertheless there are thoroughly some patents which are about software. But how is this possible? The answer to this question is that software can’t be excluded from patent protection in general. According to the law only software as such is excluded as it is evaluated as not technical. The Federal Supreme Court defines that an invention is technical if it influences the real physical world in any kind through the effort of controllable physical agents (BGH GRUR 1969, 672 – red pigeon). For a software as such this does not occur.

Indeed if a patent is about a software in conjunction with a hardware, you can’t talk about a software as such and a patent protection would be possible. An example would be an industry robot which is operated by a software. In this case a software comes also into use, but the difference is that physical elements are employed as well. Hence the invention is technical. While a plain computer program can’t benefit from patent protection, a computer program which is conducted by a computer can awfully well as it is considered as technical ...

Zum vollständigen Artikel

Cookies helfen bei der Bereitstellung unserer Dienste. Durch die Nutzung erklären Sie sich mit der Cookie-Setzung einverstanden. Mehr OK