German Court Declares Software Patents Legal

A German court has found in favour of Siemens, in a case that critics say will allow patentability of any kind of software in that country, contrary to the stated policy of the European Union.

The ruling allows Siemens a patent for a “client-server software for the automatic generation of structured documents (such as XML or HTML)” according to analysis by open source campaigner Florian Mueller on the FOSS Patents blog. The full court statement has been published by End Software Patent

A big change for Germany

“This decision has the effect that in Germany, a country in which software patents were previously only considered valid under relatively strict criteria, all software ideas are now potentially patentable as long as they are innovative from a purely formal point of view,” said Mueller.

This means that software which is only marginally different from how things were solved before can be patented.

Software patents are widely allowed in the US, but after a large campaign, they were rejected in the European Union five years ago, on the grounds that they would stifle innovation.

Software patents could be used to patent business methods, an idea which is currently being tested by the on-going Bilski case in the US, on which the US Supreme Court is due to rule in the next few weeks.

“Basically, Germany has now had its own Bilski case – with the worst possible outcome for the opponents of software patents,” said Mueller. “While the Bilski patent relates to a software-implemented business method and the German decision relates to automated document generation, either case is key in its respective jurisdiction for defining the limits of patentable subject matter in connection with software.

“Five years ago, the push for European software patents hit a snag: the European Parliament threw out a proposal that would have ‘codified’ [turned into an EU law] the pro-software-patent position.” said Mueller. “Now 2010 looks like the year in which the proponents of software patents get their way at all levels.”

Mueller is the founder of the NSoftwarePatents campaign, and has spoken out on many open source issues including the future of the open source database MySQL, following the acquisition of Sun by Oracle.

The Free Software Foundation partly funded a film earlier this year, illustrating what it calls the “patent absurdity” of software patents.