Software patents for emerging tech since 2008

Are mathematical methods patentable?


The Federal Court of Justice (FCJ)’s Airplane Status decision (BGH X ZB 1/15 — Flugzeugzustand) concerns another item on the list of subject-matters excluded from patent protection “as such”, namely mathematical methods.

The patent application under consideration concerned a method for determining the position, velocity and orientation of an airplane. Claim 1 reads (English translation):

A method for determining an airplane status, namely the position, velocity and orientation of the airplane, comprising the steps of:

determining an amount n of measurement values xi with i=1,…,n of a inertia system which determines the airplane status, wherein the measurement values xi are points in the k-dimensional space,

processing the measurement values xi in a Kalman filter for estimating the airplane status, characterized in that:

for each amount n of measurement values xi of the inertia system a first factor mn and a second factor rn are calculated and these calculated factors are fed into the Kalman filter for further processing,

wherein the factor mn is the center point vector and the factor rn is the radius of a k-dimensional sphere Bn, within which all points xi with i=1,…,n are located;

wherein the sphere Bn is an as small as possible k-dimensional sphere, which without exception contains all points xi with i=1,…,n of the amount n of measurement values.

As can be seen, the claimed method was directed essentially to a mathematical algorithm used for the determination of an airplane’s status.

The Federal Patent Court had rejected the application based on the argument that the invention differed from the prior art only by the claimed mathematical calculations which were non-technical and thus irrelevant for the assessment of inventive step.

The FCJ reversed this finding and made some interesting statements in the headline of the decision Airplane Status:

a) Mathematical methods are with regard to § 1 (3) No. 1 Patent Act only patentable if they serve to solve a specific technical problem with technical means.

b) A mathematical method can be considered non-technical only if it has no relation to the targeted application of natural forces in connection with the claimed teaching.

c) A sufficient relation to the targeted application of natural forces is present if a mathematical method is used to obtain more reliable insights about the status of an airplane based on available measurement values and thereby influencing the functioning of the system serving the determination of this status.

Accordingly, this decision underlines that the application of mathematical methods is to be considered technical — and therefore patent-eligible — if it is employed for achieving a specific technical objective (here: determining the status of an airplane). Insofar, this finding seems to be in alignment with the jurisprudence of the Boards of Appeal of the European Patent Office (EPO).

The whole decision (in German) can be found here. Some further nice discussions about this case are here and here.

This article is based on excerpts of the “Germany” chapter of “Software Patents Worldwide” by Dr. Hans Wegner and Bastian Best. Reprinted from Software Patents Worldwide, Suppl. 22, December 2015, with permission of Kluwer Law International.

Originally published at on December 18, 2015.

About Bastian Best

Bastian Best

I'm a European patent attorney specializing in software patents and a partner in one of the most renowned IP only firms in Europe.

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By Bastian Best Software patents for emerging tech since 2008