This "Blawg" is basically dedicated to the pros and cons of software protection through IP rights (i.e. so called "software patents" or, more corectly expressed, "computer-implemented inventions") and will thus try to follow the ongoing (worldwide) discussion in this highly controversal field of IP practice and politics.
This year we will see important developements (or setbacks, depending on the viewpoint) in this field. In fact, 2010 may bring a turning point or consolidation in the discussion on CIIs since important cases are pending both in Europe and the US.
In Europe it's pending case G3/08 being a referral to the Enlarged Board of Appel of the EPO in which the Board has to decide on the following questions:
- Can a computer program only be excluded as a computer program as such if it is explicitly claimed as a computer program?
- Can the exclusion be bypassed by tying the claimed invention to a piece of hardware?
- Must a claimed feature cause a technical effect in the real world in order to contribute to the technical character of the claim?
- Does the programming of a computer necessarily involve technical considerations?
For the United States patent practice the outcome of the case In re Bilski, which presenty is pending at the US Supreme Court, is expected to be groundbreaking. In this case the highest US court has to decide on the question whether or not the patentability of a process claim can exclusively be verified by the Machine-or-Transformatin-Test (MOT) requiring that a process
- is tied to a particular machine or apparatus; or
- transforms an article from one thing or state to another.
Futher interesting developments having impacts on US and German CII practice are ex parte Gutta (cf. decision by the US Board of Patent Appeals) and the decision X ZB 22/07 of the German Federal Court of Justice (Bundesgerichtshof) addressing similar questions. I may later refer to these two cases in more detail.