Is software patentable subject matter in Germany?
Yes, if the software is related to an invention which has a technical character and provides a technical contribution to the prior art by solving a technical problem. By contrast, if the software solves only a business-related problem and no technical considerations are involved in its solution, the software is not patentable in Germany.
What are “technical character” and “technical contribution”?
Unfortunately, neither the German Patent Act (Patentgesetz, PatG) nor the decisions of the courts provide a valid definition of these terms. By contrast, the German Federal Court of Justice has repeatedly stated that the concept of technology as a legal term used for the delimitation of patentable inventions eludes a definite and final determination. However, if a software-related invention differs from the closest prior art in the way the software controls a technical process and/or processes technical data chances are good that it will be found to meet the software-specific requirements for patent protection in Germany.
How is this implemented in Germany?
The German PTO and courts follow a three-step approach when assessing the patentability of software inventions. The first requirement is that of technical character of the invention, the second is the exclusion of software “as such”, and the third is inventive step, where only the technical features are taken into account (see here for more information on the German three-step approach).
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 www.europeansoftwarepatents.com on December 22, 2015.
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