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A quiet but important step for software patents in Germany; Crucial for key technologies such as AI & quantum computing.

By Sandra Helsel posted 17 May 2022

(ManageIP) Simon Lud, Partner of Maiwald explains that a recent decision by the German Federal Court of Justice from October 2021 can be seen as a positive litmus test for the patenting of computer-implemented inventions in Germany. Lud writes, “The decision is also crucial for the most important key technologies, such as artificial intelligence and quantum computing.” IQT-News shares below.

In the decision X ZR 98/19 of October 7 2021, the German Federal Court of Justice (Bundesgerichtshof – BGH) once again had to decide on the issue of patenting software. Although the BGH did not give the decision a title or a guiding principle in terms of a headnote, there is more to learn from this decision than from many other more frequently cited decisions that receive more media attention. Studying the decision offers the opportunity to learn to what limits the BGH currently considers software to be patentable.
Claim 1 of the patent in suit basically exhausts itself in the connection and consideration of a unidirectional data path, and it seems that this very limited connection to the data processing system was sufficient to render the subject matter of this claim technical.
Particularly for future technologies such as artificial intelligence and quantum computing (although for the latter the question of hardware – superconductors versus ion traps – is by no means decided yet), it seems to be advantageous if the interaction of hardware and software does not have to be described in too much detail in the claim.

Therefore, the approach of the BGH of not imposing a high requirement on the linkage of software and hardware seems to be very advantageous for patent applications in the fields of artificial intelligence and quantum computing.

Sandra K. Helsel, Ph.D. has been researching and reporting on frontier technologies since 1990.  She has her Ph.D. from the University of Arizona.


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