24 April 2010

Microsoft's controversal FAT patent upheld by German Federal Court of Justice

As reported here and elsewhere, the German Federal Court of Justice (BGH) has overtuned in his decision X ZR 27/07 dated April 20, 2010 the first-instance nullity decision 2Ni 2/05 of the Federal Patent Court (BPatG) to revoke Microsoft's German patent DE 69 429 378 (national part of EP 0 618 540) relating to a "common name space for long and short filenames" in relation to the FAT file system (see the notification of the BGH). Granted independent method claim 1 of the patent reads:

1.  A method of operating a data processing system (10) comprising memory (16) holding an operating system (17), and a processor (12) for running the operating system (17), the method comprising:
  1. storing (58, 59) in the memory (16) a first directory entry (18) holding a short filename for a file;
  2. storing (58, 59) in the memory (16) a second directory entry (20) being associated with the first directory entry (18) and holding a long filename for the file, said long filename having more characters than said short filename, said second directory entry (20) further holding information (42) indicating that said second directory entry (20) holds said long filename; and
  3. in case that the operating system (17) permits only short filenames and said information (42) is set to make said second directory entry (20) invisible to the operating system (17), locating the file by accessing said first directory entry (18) or, in case that the operating system (17) permits long filenames and said information (42) is set to make said second directory entry (20) visible to the operating system (17), locating the file by accessing said second directory entry (20).
By the claimed subject-matter, the patent solves the problem that the length of file names in older MS-DOS versions is limited to only eight characters in that a second directory entry holding a long file name for the file is associated with a first directory entry representing the short file name, such that the first or second entry can be activated depending on the operation system. 

In the first-instance nullity proceedings, the Federal Patent Court has decided on October 26, 2006 that the claims granted by the German Patent and Trademark Office (DPMA) are not based on an inventive step over the Rock Ridge Interchange Protocol (RRIP) for reading files on CD-ROMs, since RRIP extends the ISO 9660 standard towards CD-ROM contents access via the POSIX file system by exactly utilising the claimed method. 

In the appeal instance, however, the BGH did not agree with that ruling of the BPatG and interpreted the claimed subject-matter differently. According to the BGH's interpretation, the claimed teaching enables concuerrently using short and long file names (as enabled e.g. by the VFAT format used in Windows 95) in a way compatible with the older FAT file system, which is achieved by a file attribute (the claimed "information (42)") stored in the second file entry with the help of which the second file entry (representing the long file name) can be made visible or invisible depending on whether the underlying operating system supports long or short file names.

The BGH thus concluded that the patent invention suggests, for solving the compatibility problem, to store two file entries separately comprising the short and long file name, while RPIR teaches to store both file names in the same file entry, for other reasons.

Analogously, also US couterpart patent US 5,579,517 has been finally upheld in early 2006 by the USPTO in a re-examination, after the patent has been revoked before.

From the point of view of the anti-(software)-patent community, this nullity appeal decision of the highst German court will surely be considered as the second decision in a row, after X ZB 22/07 („Steuerung für Untersuchungsmodalitäten“) in January 2009, which relates to patenting of software-implemented inventions in a much too liberal way:
Young judges at the Karlsruhe-based Federal Court of Justice considered it a progressive move to fit in with European Patent Office case law and to interpret the non-patentability of computer programs "as such" accordingly. 
In the earlier decision X ZB 22/07, the BGH explained under which circumstances a software that is embedded in a larger technical system may represent statutory subject-matter, whereas commentators assume that this decision may represent a turnaround of the BGH’s approach to assess technical character of an invention towards the more liberal attitude of the Boards of Appeal of the European Patent Office, as e.g. presented in the decision “Auction Method/Hitachi” (see also my related earlier post).