Software patents are contentious, and nowhere more so than in Europe. Patenting there is governed by the European Patent Convention (EPC). Article 52 of the EPC reads as follows: (1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.
Although the exclusion of software seems crystal clear there, the same Article adds the following regrettable rider:
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:
(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.(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.
What exactly those two words "as such" mean in this context has been argued over for years. In practical terms, it has led to thousands of software patents being issued thanks to clever framing by lawyers that takes advantage of the "as such" loophole. According to this post on a blog that is called unashamedly "European Software Patents," it seems that German judges have now gone even further, and granted a patent for a graphical user interface. That's surprising, because the same EPC Article 52 explicitly excludes "presentations of information" from patentability. So how did the lawyers get around that? By using the "as such" loophole again. As the blog post explains: the Federal Court of Justice (FCJ) held that the [EPC's] exclusion is overcome when the presentation of information serves the solution of a technical problem with technical means
Just in case that legalese isn't crystal-clear, here are details of the case considered by the German court. The patent dealt with the display of visual information captured by a swallowable capsule equipped with a camera. Apparently, these cameras produce information too rapidly to be useful for ready examination by the human eye. That problem was solved by showing only a subset of transmitted frames in one window, and different subsets in other windows. The idea is that an expert can scan several of these windows at once, since the images in each are changing relatively slowly.
Germany's Federal Patent Court held this to be a pretty obvious idea (which it is), but the country's Federal Court of Justice reversed that finding, and decided that the idea of breaking up a stream of images into subsets was terribly clever, and definitely eligible for patent protection. It also made a more general statement about the patentability of graphical user interfaces: Instructions relating to the (visual) presentation of information which do not primarily focus on the conveyance of particular content or its conveyance in a particular layout but on the presentation of image content in a manner that takes into account the physical characteristics of human perception and reception of information and are directed towards making possible, improving or making practical the human perception of the displayed information serve the solution of a technical problem with technical means.
It's one of those how-many-angels-can-dance-on-the-head-of-a-pin distinctions beloved by patent lawyers, but which actually makes no sense. After all, it could be argued that any intelligible, well-designed presentation of information "takes into account the physical characteristics of human perception and reception of information," and therefore is eligible for a patent. The latest decision by the German courts will doubtless lead to the granting of further, similarly-trivial patents, and to companies increasingly nervous about the use of even the simplest graphical user interface in their products for Germany. So how is that encouraging innovation or benefiting the public?
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