Questionnaire May 2003 Q178 Scope of Patent Protection. Answer of the German Group

Transcription

1 Questionnaire May 2003 Q178 Scope of Patent Protection Answer of the German Group by Dr. Thomas Seuss and Stephan Freischem 1. Which are the technical fields involved? 1.1 Which are, in your view, the fields of technology in particular affected by recent discussions concerning the scope of patent protection? The German National Group agrees with the view that the current fields of technology which were in particular affected by the latest discussions concerning the scope of patent protection are the following: 1. Biotechnology and 2. Computer programs/business methods. 1.2 What makes this field/these fields of technology special compared to other fields of technology in the context of this discussion? Biotechnology Biotechnology is a technology which is still very young but which is highly controversial in social terms. In particular, genetic engineering, which concerns itself with the elucidation and application of DNA and RNA sequences, is being critically questioned by environmental groups, churches, political parties and other social groupings. Proteins (e.g. insulin, erythropoietin, interferons) have for decades been produced by biotechnological methods. The patenting, production and use of such proteins did not present any problems. The elucidation of complete plant, animal and finally, human genomes began in the early 1990s. New computer-based techniques were used for this purpose, making it possible for human DNA to be elucidated in a very short period of time. Further developments make it possible to diagnose genetic material and intervene in the genetic material of plants and animals and seem to make it possible to intervene in the

2 2 genetic material of humans and to clone higher mammals and also (at least in principle) humans. These techniques are highly controversial among the public. The concerns are partly of a technical nature (the spreading of modified genetic material in the natural world), but partly also of an ethical nature. In particular, any manipulation with and intervention into human DNA sequences will raise the strongest technical and ethical concerns. Certain techniques have even been prohibited by law and others are greatly restricted (stem cell research). At the same time, the patenting of techniques and products obtained using the techniques (e.g. DNA sequences and RNA sequences) are critically questioned among the public, some critics demanding statutory prohibitions on the patenting of DNA/RNA sequences. The misconception prevails in sections of the public that the patenting of an invention must be equated with a permit for its use. In connection with the sequencing of ESTs (expressed sequence tags) and SNPs (single nucleotide polymorphisms), patents have been applied for in respect of genetic sequences, the meaning of which was highly unclear or even purely speculative. The public therefore perceived the risk that fantasy patents would therefore constitute dependencies for uses of such sequences which were subsequently discovered and that research in these fields would thus come to a halt. The production of genetically manipulated plants and animals (including humans) is the cause of further ethical concerns, as shown, for example, by the case of the oncomouse. Ethical concerns also play a role in the patenting of aspects of reproductive medicine, such as in-vitro fertilization, pre-natal and pre-implantation diagnosis. The patenting of the abovementioned processes and process products, in particular the patenting of DANN and RNA sequences, throws up the following detailed problems: 1. Distinction between discovery and invention 2. Interpretation of the concept of novelty in the case of natural substances 3. Determining the inventive step 4. Demands for full disclosure in relation to the scope of the claim 5. Interpretation of the claims, particularly issues of equivalence 6. Issues of (multiple) dependency of patents 7. Scope of the claims in the case of research tools (reach-through claims) 8. Ethical concerns about the patenting of genetic material or creatures produced therewith.

3 3 Interestingly enough, points 1-6 in particular are by no means new problems but have already been discussed in the past in respect of other technologies (see below) Computer programs/business methods The field of computer-related inventions now covers many fields of technology. Examples are automated (computer-controlled) factories and machines; products using computer chips or programs such as cars, mobile telephones, navigational systems, hearing devices, household appliances, weapon systems, cameras, medical equipment, etc. and telecommunications systems which can combine all these new products with one another. The Internet is the basis for a modern and previously impossible exchange of information and data. New, computer-related technologies have revolutionized world financial markets and led to a considerable increase in the number and speed of financial transactions and in the speed at which complex financial analyses can be carried out. All these knowledge-based products and services extend and make use of current social systems and commercial property right systems. The question of the extent to which commercial legal protection (particularly patent protection) is necessary in modern knowledge-based business, where users, consumers and small businesses are appropriately protected and interoperability is made possible, is at the heart of the present discussion about computer-implemented inventions. As from the introduction of the German and European patent law, the technical nature of an invention has been a vitally necessary requirement for patenting. It is frequently disputed in the case of computer programs whether they are of a technical nature. Although it is now widely recognized that any specially programmed computer has a technical nature 1, it remains disputed whether this technical nature makes a computer program patentable in principle if it is new and not obvious (in other words, if it is inventive). The technical processes in the control of the computer by the program are generally known and are usually not influenced or changed by the programmer. A programmer generally uses a programming language and not a machine language which directly controls the processor. A computer program may have new features and method steps which use laws and achieve results belonging to fields which have not previously been regarded as technical, such as mathematics, business management, linguistics, etc. It is debatable whether computer programs whose innovative contribution is in a non-technical field of this kind are patentable. 1 Federal Court of Justice, Speech Analysis Device, X ZB 15/98, GRUR 2000, 1007

4 4 The current case law of the German and European patent authorities requires the subjectmatter of a patent claim to make a technical contribution in order for it to be patentable. It must also be borne in mind that new software developments and new hardware such as programmed logic devices and ASICs are technically interchangeable. It has never been doubted that hardware of this kind is patentable. Computer scientists regard any distinction between hardware and software as artificial. Some supporters of the general application of patent protection to software inventions have extended the issue of the patentability of software (i.e. processes carried out on a computer) to the issue of the patentability of useful processes in general (e.g. business methods as such). Furthermore, another issue arises for computer programs on the basis of the form in which such products are marketed. Patents have up to now been granted in respect of devices, including substance patents, and methods, including utilization patents. Computer programs stored in a machine-readable code which are recorded on a data carrier or transmitted via communications networks are hard to classify. A conventional claim in respect of a device covers a computer programmed in accordance with the invention. A conventional claim in respect of a method covers a new and inventive method which is in fact loaded in the memory of a computer and runs on it. Computer programs are marketed in the form of machine-readable control instructions, normally on data carriers (diskettes, CDs, DVDs) or via the Internet. A patent infringer making commercial profits selling such program codes does not therefore commit any direct patent infringement. It is much harder to establish claims on the basis of an indirect patent infringement than on the basis of a direct patent infringement. For this reason, it is necessary, for complete patent protection, to protect the program product sold in the market oneself. The main argument in the case law is that a patent claim in respect of a machine-readable program product with program code to perform a patentable method comprises an additional method step as well as the patentable method, namely reading in the program. Although this known step makes no contribution to the level of the invention, there is also no doubt that a program which is new and inventive in itself is patentable. The European Patent Office, in decision T 1137/97 for example, recognized a claim directed at a computer program as a claim for a product or device. The German Federal Court of Justice took the same view.

5 5 2. Definition of patentable subject matter 2.1 What is the definition of patentable subject matter in your jurisdiction? Do different definitions apply in various fields of technology? If so, what are the differences? Pursuant to the German Patent Act and the European Patent Convention, patents are granted in respect of inventions which are new, based on an inventive step and susceptible of industrial application. A further requirement for patentability is the technical nature of an invention. Although this is not specifically mentioned in the Act, it can be inferred from it. There is no fixed definition for technical nature either in European case law or in German case law. In Germany, the following definition has been used for a number of decades for the technical nature of a teaching. A teaching is technical if it is a teaching relating to planned actions using controllable natural forces to directly achieve a causally clear result without the interposition of human mental activity. In recent years, this definition has proved to be too static. The concept of technology must be applied dynamically. With regard to computer-implemented inventions, the case law of the European Patent Office has also required that the subject-matter defined by a patent claim makes a technical contribution. The German Federal Court of Justice seems to support the requirement, which was accepted as a key aspect in a draft EU directive on computerimplemented inventions. According to the case law of the European Patent Office, the entire content of a patent claim, with its technical and non-technical features, must be considered in order to ascertain the technical contribution. A technical contribution is acknowledged, for example, if a program developer adapts known and possibly nontechnical (business) methods using technical considerations, in such a manner that they can be implemented in the best possible manner by means of the technical possibilities and working methods of a computer. 2.2 What are exemptions/exceptions to patentability? In addition to inventions which are contrary to ordre public or morality (Article 53(a) EPC, Section 2(1) German Patent Act (Patentgesetz-PatG)), the following subjects are not regarded as a patentable invention pursuant to Article 52(2) EPC (Section 1(2) PatG):

6 6 a) discoveries, scientific theories and mathematical methods; b) aesthetic creations; c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; d) presentations of information. in the case of the said subjects or acts as such. Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body are not regarded as inventions which are susceptible of industrial application, pursuant to Article 52(4) EPC and Section 5(2) PatG. This does not however apply to products, in particular substances or compositions, for use in any of these methods. Additionally, pursuant to Article 53(b) EPC (Section 2(2) PatG), patents shall not be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals. This provision does not, however, apply to microbiological processes or the products thereof. 2.3 What is the reasoning behind those exemptions/exceptions? The main common reason for the prohibitions against patenting under Article 52(2) EPC is above all the absence of any technical nature. a) Discoveries, scientific theories and mathematical methods: This exception to patenting is in accordance with Rule 50(j) of the German Regulations implementing the Patent Co-operation Treaty (AOPCT). Discoveries, scientific theories and mathematical methods are purely abstract and intellectual knowledge, whereas an invention is defined by a particular rule about activity (the use of natural forces). b) Aesthetic creations: Aesthetic creations are aimed at evoking human aesthetic feelings and creating an impression in terms of, for example, space or colour. A teaching which is limited to an effect of this kind is not a technical teaching. c.1) Schemes, rules and methods for performing mental acts: This exception from patenting, which goes back to Rule 39(iii) AOPCT relates to pure instructions to the human mind. They influence the intellect itself in order to achieve an intellectual result, and are not directed at achieving a technical result using controllable natural forces.

7 7 c.2) Playing games: Schemes and rules for games are also directed purely at the human mind and are therefore not a teaching about technical acts to achieve a result by using natural forces. c.3) Doing business: Schemes, rules and methods for doing business, as such, are directed at the human mind and therefore do not contain any patentable technical teaching. c.4) Programs for computers: Although this exception from patenting was for a long period treated in the case law as if it also related to a subject which was not technical in nature, it is different from the other subjects covered by Article 52(2). A computer program is basically a method of operating an electronic system which works automatically and is used to achieve a particular result. It seems that the reason for excluding computer programs from patenting was not so much that they lacked any technical nature but rather the impossibility of investigating them at the time when the EPC was introduced. d) Presentations of information: This exclusion from patenting goes back to Rule 39 (c) AOPCT. Presentations of information do not influence the outside world (result) by means of controllable natural forces but merely transfer knowledge in a manner which people can perceive. Exclusion of patentability only in respect of the abovementioned subject-matter as such All the abovementioned subject-matter is only regarded as non-patentable inventions in so far as it relates to such subject-matter or activities as such. If this subject-matter is used in the context of a technical teaching, it can obviously constitute a patentable invention. This is evident in the case of discoveries, scientific theories and mathematical methods. In relation to computer programs, the restriction of the exclusion from patenting to computer programs as such has led to a distinction being made between technical and nontechnical computer programs. Computer programs classified as technical have not been regarded as programs as such, so that the effect of the exclusion from patenting for computer programs was limited and more and more program patents have been granted as computer technology has progressed. Medical, diagnostic and therapeutic methods: Exclusive rights to such methods should be avoided in order to ensure that they are freely available for all living creatures concerned. For methods of this kind, there is no restriction to the methods as such. As a result of the fiction of non-susceptibility to industrial application, the exclusion from patenting applies even if the said methods are susceptible of technical and industrial application.

8 8 Plant or animal varieties Patent protection was originally only intended for inanimate technology and did not cover any new species of living creatures or methods for producing them. In accordance with Article 27 TRIPS, the patenting of microbiological processes and the products thereof is expressly permitted. Additionally, plant varieties are protected in Germany by the Plant Varieties Protection Act (Sortenschutzgesetz). 3. What is the effect of this definition on activities concerning patent protection? 3.1 Is the scope of protection sufficient or does it lack of opportunities for further protection? This includes economic aspects for users as well as for the public in general regarding various technologies Biotechnology Biotechnological processes and products are patentable in principle under the German Patent Act and also the EPC. Patents for RNA-sequences and DNA-sequences are granted both by the German Patent Office and also by the European Patent Office, where the general patenting requirements are met. As the European legislator intended to harmonize the patenting requirements for biotechnology at the European level, the Biotechnology Patent Directive was issued in 1998 after more than 10 years of discussions. New exclusions from patenting, inter alia, are defined in this directive. European directives must be implemented in the national law of every country. The Member States had until 30 June 2000 in order to implement the Biotechnology Patent Directive. While the European Patent Office (which is not formally connected with the law of the European Communities) has revised its provisions relating to the patenting of biotechnology (Rule 27) and made them more precise, the Directive has not yet been implemented in German law. The failure to implement the Directive in German law does not currently present any disadvantage to patent applicants, as it is unreservedly agreed that biotechnological products and processes are patentable in Germany Computer programs/business methods There is no scope of protection for new (business) methods whose innovative features make no technical contribution, as such developments are excluded from patenting. The result of this is that European companies do not normally acquire any patent protection for such developments. In countries in which patent protection is granted for any new, inventive and useful methods (e.g. the USA), the domestic industry will apply for those patents and European industries will not normally protect such developments.

9 9 Protection for technical software is extremely widely developed under the EPC. However, the wording of the EPC still makes applicants uncertain. Because of the exclusion from patenting for computer programs pursuant to Section 1(2) PatG and Article 52(2) EPC, individual inventors and small and medium-size industrial companies remain stubbornly convinced that software is not patentable in principle, regardless of whether or not it makes a technical contribution. When the EPC was revised in 2000, the opportunity to adjust the wording of the legislation in accordance with the case law and the mandatory provisions of Article 27 TRIPS was unfortunately missed. It is urgently necessary for the extent to which software can be patented in Europe to be clarified. 3.2 If the scope of protection is not sufficient, how does this affect the users patenting policy? Does this also have an impact on research policy? Biotechnology As there are no current statutory restrictions on patentability in the field of biotechnology in Germany, patent applicants and patentees are not currently restricted. The generally lengthy duration of the procedure in this field is however disadvantageous. It is unclear whether and in what manner the Biotechnology Patent Directive will be implemented in German law. There are entirely realistic fears that substance protection in the field of biotechnology could be restricted. This would firstly be a deharmonizing of the patent law in this field and could also be in breach of the ban on discrimination under Article 27 TRIPS. Any restriction on research in the field of biotechnology by the granting of patents is excluded by the privilege in favour of research (under Section 11(II) PatG). The privilege in favour of research has recently been broadly interrupted by judgments of the Federal Court of Justice (clinical trials 1 and 2), so that fears in this respect are unjustified. This also applies to the patenting of research tools. Entirely independently of biotechnology, universities and other academic institutions in Germany have however recently been faced with the challenge of having to finance themselves through a greater extent from non-public funds. Universities are thus carrying out more research using private funds and must accordingly to some extent be regarded as the extended workbench of companies. In the case of such research, it is debatable whether research covered by the privilege in favour of research is still being carried out or whether this is an industrial activity which is no longer subject to the privilege in favour of research - an issue which must be examined in individual cases.

10 10 Computer programs/business methods German companies do not generally submit patent applications in respect of non-technical inventions such as new business methods. Business management methods, which are often highly complex and expensive to develop, are thus unprotected, unlike technical developments by German companies. Attempts are made, however, to monopolize important business management achievements by means of confidentiality. The developer will thus not notify the public of his development. The lack of protection is also a competitive disadvantage for German companies compared to companies from economic areas (e.g. the USA) in which patent protection exists in respect of business methods. German companies generally fail to apply in the USA for patent protection for developments which are not capable of being protected in Germany. However, US companies have their developments in the USA protected and make it more difficult for competitors to access the US market. They will additionally also attempt to obtain international patent protection, as a result of which they are more likely to obtain protective rights for developments on the boundary of patentability than their German/European competitors. The same still applies in respect of technical computer programs, because many small and medium-sized companies assume that they are incapable of being protected. Small and medium-sized German companies will therefore fail to have their technical software developments protected more frequently than competitors from the USA. In various cases, up-and-coming US companies have a competitive advantage as a result of patents both in the domestic market and also in Europe and manage to monopolize their core technologies and drive out German/European competitors which have no patent protection. It is difficult to assess whether restrictive patenting practice has an influence on research activities. The decision about a software development normally depends on the need for a particular software product, not on its patentability. In any event, companies from legal jurisdictions with weak patent protection generally rely on protecting their developments by means of copyright or confidentiality. The tendency to keep new approaches in relation to software problems secret reduces the publicly available prior art in these fields. Software developers with innovative ideas but who do not have the company resources to implement these ideas in products or exploit such products commercially are prevented from pursuing their ideas further by inadequate patent protection. If a freelance inventor is unable to patent his inventions, he is unable to claim reasonable remuneration for the commercial exploitation of the invention. He will therefore not publish his inventions. The same applies to business methods.

11 What are the political or social obstacles, apart from the purely legal area, which play a role in research and patenting? Biotechnology With regard to patents in respect of RNA-sequences and DNA-sequences, a broad social front of churches, trade unions, environmental protection associations and parties (of various colours) has formed which either completely rejects such protective rights or wishes drastically to restrict the protection. A large number of patent applications, some with thousands of gene sequences, are building up fear of a large number of dependencies (and ultimately deterring people from research) in this field. A number of patents in the field of medical diagnosis (BRCA-1 gene, Myriad) have caused a great sensation, and there is discussion about whether patents make medical diagnosis unacceptably expensive. There are also fears that the activity of small and medium-sized companies in particular has been too greatly impeded by patents Computer programs/business methods With regard to patents in respect of business methods as such, a majority has formed in the groups concerned who reject such protective rights and wish to restrict patent protection in a traditional manner to technical developments. The deterrent examples of trivial protective rights in the USA seem to show that patent protection outside technology is difficult to deal with and leads to unjustified monopolies. There are also fears that patents outside the field of technology could present small and medium sized companies with substantial problems in their activity. With regard to patents for computer programs, a long development came to a conclusion at the end of the 1990s. In the speech analysis device decision, the Federal Supreme Court held that a computer which was specially equipped for programming purposes was of a technical nature so that any features which were new and not obvious must be patentable. At the diplomatic conference in November 2000, there appeared to be agreement among the Member States for a change in the EPC. An alliance of open source programmers, particularly the EuroLinux Alliance, agitated strongly against the change in the legislation in favour of software patents in the last few months before the diplomatic conference. The work of the European Commission and the European Parliament regarding the issuing of a directive on software-implemented inventions was accompanied by vigorous attacks from the open-source movement. The members of this group managed, by means of massive lobbying, to influence politicians and extend ethical concerns, which had arisen shortly before in the field of genetic patents, to the field of patent law.

12 12 The main concern of the open source movement is that software patents threaten the commercial utilization of open-source software, as new successful standards may be excluded from unrestricted use in open-source software. The main arguments against software patents are as follows: 1. software patents impede innovation (instead of promoting it); 2. there is no justification for patent protection in respect of software developments which may be simple ideas and which may not require any extensive research and development activities; 3. the quality of the examination in the field of software and business methods is low and leads to a large number of trivial patents; 4. patent protection is too expensive; 5. patent research to avoid patent infringements by new developments is too expensive. The last two points of criticism are also shared by other small and medium sized software companies outside the open-source movement. Although it must be stressed that Linux and other open-source products constitute successful alternatives to the monopoly of large software companies, it must be noted that open-source software largely implements processes and procedures which have been developed by private companies and successfully introduced onto the market by their proprietary software products. In other words, unrestricted utilization of the technical innovations and commercial success (intellectual property) of the competition is one of the elements of the success of open-source software. 3.4 How should new kinds or categories of inventions be treated? Should there be an enlargement of patent protection? If so, what are the reasons? Biotechnology The German National Group supports the EU Biotechnology Patent Directive in principle and calls for it to be implemented in German law without substantial changes. Patentability in the field of biotechnology must be preserved and it must not in principle be restricted. The exceptions provided for in the Biotechnology Patent Directive take account of the ethical concerns of society. The German National Group also takes the view that no further patenting requirements should be created (such as evidence of origin for genetic material or an examination of ethical concerns). The German National Group trusts that the patent-granting authorities and the courts dealing with infringement and nullity cases will duly apply and continue to develop the principles of patent law which have been

13 13 (further) developed over decades, so that there can be no negative repercussions from the patenting of biotechnological inventions Computer programs/business methods In principle, the German National Group supports the EU initiative to maintain the patenting of inventions with a technical contribution. In doing so, the technical contribution must be ascertained as generously as possible and must be recognized even where technical considerations are applied in developing a program which is otherwise nontechnical. Protection for computer program products should definitely also be granted in this respect. Systematic preference must be given to patenting any new and non-obvious computer program. This will produce a clear dividing line between technical and non-technical inventions. The automatic solution of a task by a computer by means of particular software must accordingly be regarded as a patentable invention. Any non-technical processes which are not implemented by computers (business methods, etc.), and which are not carried out on a computer but only by using human intellect, are not patentable. Setting the limit of patent protection in this manner also removes the unequal treatment of inventions implemented by hardware arrangements and software programs. 3.5 If you find the range of patentable subject matter too wide, how should it be limited? What would be the reasons for such a limitation? What do you see as the positive effects of such a limitation? The German National Group does not find the range of patentable subject matter to be too wide. 4. Further points of discussion 4.1 Which upcoming problems do you see specifically as a result of the change of the scope of patent protection regarding the requirements for patentability, in particular novelty and inventive step? Biotechnology We do not foresee any extensions of patentability, and so no problems are seen in this respect. If patentability is restricted in this field, the German National Group is afraid that many demarcation problems will arise. If, for example, human DNA-sequences are excluded from patentability, that will throw up questions such as the following:

14 14 Is a cdna obtained from the human genome DNA also excluded? Is a DNA sequence obtained from a chimpanzee which later turns out to be identical to a human sequence excluded (subsequently) from patent protection? Computer programs/business methods The extension of patent protection to computer-implemented inventions (and also to business methods) does not cause any particular problems with regard to requirements for patentability, particularly novelty and inventive step. The requirements of novelty and inventive step may be applied to software (and business methods) in the same way as to conventional inventions. This includes the problem - solution approach used by the EPO and by the German patent authorities in order to make an assessment of the level of the invention. 4.2 What are specific problems of the granting proceedings (search, examination) if the scope of patent protection is enlarged? Biotechnology No extensions of patentability are foreseen, and so no problems are apparent in this respect Computer programs/business methods The main problem arising from the extending of the scope of patent protection to software inventions was that there was a large number of trivial patents. Such patents claim protection for features which are known or obvious to a skilled person. These patents arose partly from a combination of examiners with little specialist knowledge of these new technologies, a substantial increase in applications in these fields and the lack of search tools to discover the relevant prior art. It should be noted that the requirements for the inventive step are generally not so high as in previous decades. This leads to patent rights for developments which may be new but which appear obvious to a skilled person. The patent offices should ensure that a sufficiently high level of inventive step is required. Unjustified patents for trivial developments can thus be avoided and the acceptance of the patent system by experts can be increased. Low requirements for inventive step can lead to a large number of trivial patents which handicap technical development. These problems are not restricted to the fields of software and business methods but are particularly obvious in these fields.

15 What do you see as possible solutions for these problems? Would further harmonization of the laws help to solve such problems and, if so, in what way? Biotechnology Not applicable Computer programs/business methods If a new field is given access to patent protection, it is very important for patent applications to be examined by experts in this field. Patent literature for this specific field will not initially be available. It is crucial for the examiner to have good knowledge of the prior art and extensive general literature available as the basis for his work. It is also important for a patent examiner to require a particular inventive level in order to preserve the equilibrium between reward for innovative developments and protecting the general public against unjustified monopolies. The harmonization of the substantive patent law (SPLT) would be very helpful in order to establish a high international standard for patent examination. The standards and experience of the established patent offices and judicial systems can serve as a guideline for other countries. II. Miscellaneous Biotechnology In the case of ESTs and SNPs, in particular, a large number of patent applications of a highly speculative nature have been made, which are in fact difficult to keep track of. The German National Group supports a strict standard being set as to the existence of all patenting requirements in the examination for patentability, so that an inventor s contribution to the prior art is rewarded by a commensurate protective scope. If an inventor s contribution in an individual case is very large, a large protective scope must be granted, whereas if the contribution is very small, the protective scope can also be kept small or refused altogether in an individual case. The German National Group takes the view that the patent system has in the past proved its worth in all fields of technology and trusts that the patent offices and courts will also make decisions in the future which have a positive influence on society as a whole. Computer programs/business methods As stated above, the German National Group supports the application of strict standards also in connection with computer-implemented inventions, particularly in the examination of the inventive step, in order to avoid trivial patents which may have the effect of handicapping innovation.

16 16 No special treatment is necessary for software developments. The incremental development of computer programs (development in very small steps), which is often referred to by opponents of patents, can be seen in the same way in the case of hardware developments. The need for interoperability and international standards for software products exists also in the case of hardware. Many international standards (e.g. audio-cd and DVD, GSM mobile telephone, etc.) have been defined and made available to all competitors in this area in spite of the existence of patent protection. Additionally, the large interchangeability of software and hardware solutions makes an exclusion from patentability for one of these fields appear arbitrary.