To patent software – is it possible and if so, how?

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 in Germany. We would like to explain you in detail, what it’s all about.

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

As a matter of 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 plain mental procedures like mathematical calculation formulae are approachable for patent protection. The fact is that software can properly speaking be counted among 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 considered non-technical. First of all, let’s clear up what is meant by that. 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 court decision of 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 executed by a computer can awfully well as it is considered as technical ...

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