Plenary Presentation 5
Gerald Spindler (University of Göttingen)
gspindl@gwdg.de
The European Legal Framework for Software Patents
Abstract
The patentability of software has undergone a fast development in the last 15 years: Starting
with a strong rejection of software patentability as software was qualified as a sort of algorith
courts of Germany and UK as well as the EPO began to accept patent claims for software in
recent years. This evolution culminated in a famous decision of the German Supreme Court
which attributed the quality of being a technical innovation to a software designed to analyze
speech on a computer. Hence, legal practice tended to enlarge the patentability even to
products which were not far away from mere methods or algoriths – which are commonly not
deemed to be patentable in order to avoid a blocking of future innovations. The core issue is
to assess software in the conflict between mere ideas and methods on one side and pure
technical solutions on the other side – above all taking into account that more and more
technical (hardware) solutions are being replaced by software solutions. In particular,
software innovations tend to be incremental, thus requiring a wide common non protected
basis of knowledge. Hence, patent protection for software may endanger potentially this
common basis as software development needs to build upon code modules. The new EUProposal
for Software on Patents restricts the mentioned to tendencies in Member States and
of the EPO to grant patent protection to software as the proposal strictly adheres to technical
innovations and avoids any consideration of business methods when the question of novelty is
arised. However, the proposal does not define the notion of “technical” so that the
qualification problem will persist in the future. Thus, it is preferable to adopt a proposal put
forward by the Fraunhofer Institute and the Max-Planck-Institute which favors a case-by-case
method in combination with guidelines in order to find a compromise between flexiblity and
legal certainty.
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