German software patent 101: What is patentable (statutory) subject matter?

von Bastian Best

Initially, software in Germany was to be protected by copyright. However, the great deficiency of copyright protection for software is that the concepts and fundamental ideas underlying the programmed software code cannot be protected by copyright.

This is the reason why patents are more attractive for protecting the intellectual property (IP) embodied in the software. Section 1 of the German Patent Act contains the basic provisions which govern the access to patent protection. Since the Patent Acts have been harmonized throughout Europe, the same provisions can be found in other national patent acts of European countries and the EPC, although their interpretation varies.

The legal framework

Section 1 PatG reads as follows in an English translation:

(1) Patents shall be granted for inventions in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

(2) …

(3) The following in particular shall not be regarded as inventions within the meaning of paragraph 1: (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, games or doing business, and programs for computers; (d) the presentation of information.

(4) The provisions of paragraph 3 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which protection is sought for such subject-matter or activities as such ...

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