The Federal Court of Justice (X. civil senate) has with judgment of 24. February 2011 (AZ. X ZR 121/09 – Web page display) the invalidation of a German patent on a method for retrieving visited websites was confirmed. The procedure was in a technical area, but was excluded from patent protection “as such” as a program for data processing systems.

Guiding principles

a) For inventions related to devices and methods (Programs) of electronic data processing is necessary first to ascertain, if the subject matter of the invention is at least to a partial aspect of the technical field (§ 1 Abs. 1 Patgan). Then it must be examined, whether this object merely represents a program for data processing systems as such and is therefore excluded from patent protection. The exclusion of facts does not intervene, if this further examination reveals, that the doctrine contains instructions, die der Lösung eines konkreten technischen Problems mit technischen Mitteln dienen.

B) A method, that of the data processing of procedural steps in network-connected technical devices (server, Clients) serves, , the presupposed for patent protection on technicality even, if these devices are not explicitly mentioned in the patent claim.

Facts

The patent in dispute DE 101 15 895 protected a procedure, where a user registers when accessing the homepage of an information provider, the pages accessed from there are recorded and a representation of the sequence of these pages is generated. This should make it easier to find abandoned pages. The Federal Patent Court declared the patent invalid. On appeal, the patent owner defended it in a limited manner, including registration on the server and the use of cookies.

The decision

The BGH affirmed the technicality: The procedure is for processing, Storage and transmission of data in networked devices; that servers and clients are not named in the claim, is harmless. However, the patent failed at the second stage. According to the judgment, there is in particular a technical means of solving a technical problem, if device components are modified or addressed fundamentally differently or if the program sequence is determined by technical conditions inside or outside the system.

That was missing. Cookie technology and the generation of HTML structures were well-known means; Moving registration to the server was simply an organizational redistribution of data processing. The information came solely from user input, and better usability or lower network load were only possible consequences, not the subject of the teaching. The appeal was rejected.

Importance for practice

The technicality of computer-implemented inventions is usually easy to justify; the real hurdle is the second stage of the exam. Applicants should therefore elaborate in the description and claims, which specific technical problem is solved with which technical means. According to this ruling, simply collecting and processing user data using usual means is not enough. The decision reflects the legal situation at the time it was issued; The case law on computer-implemented inventions has evolved since then.

Full text: Federal, Judgment of 24.2.2011 (File number X ZR 121/09), available via rechtsprechung-im-internet.de.

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Summary of the decision; no legal advice in individual cases.