European #softwarepatent roundup

European software patent roundup

While the impact of Alice on US software patents is still heavily discussed, 2016 has so far not produced any revolutionary software-related decisions by the Boards of Appeal of the European Patent Office (EPO) or the German Federal Court of Justice (BGH). The German Federal Patent Court (BPatG), however, has been quite busy. Here’s a quick roundup:

Executive summary:

  • Cryptography: Improving the level of trust in a digital certificate – not inventive
  • Controlling task execution for multimedia source encoding – not inventive
  • Implementing virtual storage pools – not inventive
  • Mathematics: Validating atomic operations in multiprocessor systems – technical and inventive!
  • Data retrieval: Generating boolean queries for clustered documents – technical? (in any case not novel)
  • Mathematics: Prioritizing virtual machine execution based on counters – technical (but inventive?)
  • Image processing: Determining optimal candidate colors – not inventive
  • Image rendering: Parallel job execution – technical? (in any case obvious)

New EPO software patent case law

Cryptography: Improving the level of trust in a digital certificate – not inventive

Fig. 1 of EP 1 777 636 A1

Decision T 2558/12 concerned an examination appeal against the rejection of European patent application No. 06 019 603.7 (“A digital certificate that indicates a parameter of an associated cryptographic token”) for lack of inventive step. Claim 1 was directed to a method for determining by a challenger a level of trust to put in a digital certificate, the challenger allowing/disallowing a trusted action dependent from a predefined level of trust.

Relative to the closest prior art the Board of Appeal identified three differences defined in claim 1, none of which could ultimately establish an inventive step:

  1. The challenger allows or disallows an action according to whether the de­ter­mined “level of trust” is greater or less than a given threshold: Not inventive, since thresholding is an obvious way of arriving at a binary decision. For example, if keys were trusted the more the longer they are, the “trust level” associated with a key would be effectively the key length. If, then, a policy requirement was a minimum key length it would be obvious for the skilled person to evaluate whether the key length exceeded the minimum length threshold and allow or dis­allow the requested action accordingly.
  2. The token information contained in the licence is cryptographically signed: Not inventive, since  digi­tal signatures are an obvious solution to the problem of ensuring the integrity of the policy-relevant information.
  3. The digital certificate contains physical parameters of the cryptographic token: Here, the invention at stake proposed a set of po­licy criteria different from those disclosed in the closest prior art. The Board of Appeal, however, took the view that the choice of policy, in itself, does not contribute to the technical character of the invention and thus could not enter the examination of inventive step.

The latter point is interesting, since the Board held that:

[10.2] If one were to introduce the policy that a cer­tain ac­tion should only be carried out with a par­ti­cu­lar kind of tamper-resistant token, then this choice it­self would not solve a technical prob­lem. In parti­cular, the security advantage of tamper re­sistance is achieved by the token rather than the policy deci­sion to require it. Coming up with a new policy thus does not solve a tech­ni­cal problem but ex­presses the wish to exploit a known advantage.

[10.3] It is noted in passing that a policy need not imply any specific technical advantage. For instance, if one were to decide that only cryptographic tokens of a parti­cu­lar manufacturer were to be trusted […], then this might in itself express some form of “trust” in that manufacturer but leaves open what technical properties it might have to guarantee so as to earn and maintain that trust.

The Board also made some interesting statements regarding the objective technical problem formulated by the appellant:

[7.1] The appellant argues that the invention solves the prob­lem of “provid[ing] an improved approach for de­ter­mining the level of trust in a digital certi­fi­cate” (see grounds of appeal, page 5, paragraph 3).

[7.2] The board considers that this formulation is unsuitable for defining the objective techni­cal problem solved by the invention, firstly because, as argued above, the con­cept of “trust” has no clear, if any, technical meaning, se­cond­ly because the level of trust is not “determined” in a technical sense, and, thirdly and foremost, be­cause it is not clear in what manner the invention “im­proves” the way of “determining the level of trust”.

Read the full decision here.

New German software patent case law

Controlling task execution for multimedia source encoding – not inventive

DE 10 2007 010 127 A1

Case 18 W (pat) 74/14 concerned an examination appeal against the rejection of German patent application No. 10 2007 010 127.0-53 (“Task execution control method for e.g. multimedia source encoding”). Claim 1 was essentially directed to a method for controlling execution of a first and second task in a periodic time frame based on a comparison of the tasks’ priorities. The overall objective was to maintain a quality of service even for tasks with low priority, in particular in streaming data systems. Relative to the prior art, the court considered the claimed subject-matter obvious. Questions like technical character or exclusion from patentability were not addressed. Read the full decision (in German) here.

Implementing virtual storage pools – not inventive

DE 11 2009 000 411 T5

Case 17 W (pat) 13/13 concerned an examination appeal against the rejection of German patent application No. 11 2009 000 411.3-53 (“Method and system for implementing a virtual storage pool in a virtual environment”). Claim 1 was essentially directed to a system for implementing distributed non-transitory data storage with multiple virtual servers and a virtual storage pool, where virtual storage machines cooperate to implement the virtual storage pool without external shared memory. The court did not identify any non-obvious teaching in view of the cited prior art. Read the full decision (in German) here.

Mathematics: Validating atomic operations in multiprocessor systems – technical and inventive!

DE 10 2007 009 909 A1

Case 18 W (pat) 68/14 concerned an examination appeal against the rejection of German patent application No.  10 2007 009 909.8-53 (“Time stamping transactions to validate atomic operations in multiprocessor systems”). Claim 1 was directed to a multicore processor where a buffer stores a time-stamp for each transaction packet and where a probability is calculated for a failure in an atomic transaction based on the time distance between packets. Notably, the court held that all features of claim 1 – albeit their relation to mathematics – had to be examined for inventive step since they served the solution of the technical problem of properly validating a multi processor system based on “natural forces” (i.e. measurement values). The claimed subject-matter was also not rendered obvious by the prior art and thus the patent was granted. Read the full decision (in German) here.

Data retrieval: Generating boolean queries for clustered documents – technical? (in any case not novel)

DE 10 2010 007 302 A1

Case 17 W (pat) 46/13 concerned an examination appeal against the rejection of German patent application No. 10 2010 007 302.4 (“System and method for generating queries”). Claim 1 was essentially directed to a system for generating a boolean query where a cluster manager clusters training documents based on training tokens and a query manager generates a boolean query based on the occurence of the training token in the clustered training documents. The court saw the objective problem in generating boolean queries which can later be used for returning cluster-relevant documents. The claimed subject-matter was considered to lack novelty relative to the prior art at hand, so that the court left open whether it was excluded from patentability per se or not. Read the full decision (in German) here.

Mathematics: Prioritizing virtual machine execution based on counters – technical (but inventive?)

Case 18 W (pat) 72/14 concerned an examination appeal against the rejection of German patent application No. 11 2006 000 016.0-53 (“Information terminal and virtual machine execution switching method”). Claim 1 was essentially directed to an information terminal with multiple virtual machines where the virtual machines are switched and executed based on a continuously selectable counter. The court held that the claimed subject-matter is not excluded from patentability per se since it solved the technical problem of ensuring the operability of multiple virtual machines without using operating system functionality and based on a prioritization of the virtual machines depending on their resource consumption. The claimed subject-matter was also considered to involve an inventive step over the prior art at hand, however, the court remitted the case back to first instance to perform another search. Read the full decision (in German) here.

Image processing: Determining optimal candidate colors – not inventive

DE 10 2006 045 416 A1

Case 17 W (pat) 56/13 concerned an examination appeal against the rejection of German patent application No. 10 2006 045 416.2 (“Image processing apparatus”). Claim 1 was essentially directed to an image processing method where a color histogram was calculated and a candidate color was determined based certain thresholds. The claimed subject-matter was considered not inventive by the court. Read the full decision (in German) here.

Image rendering: Parallel job execution – technical? (in any case obvious)

DE 10 2010 028 364 A1

Case 17 W (pat) 30/13 concerned an examination appeal against the rejection of German patent application No. 10 2010 028 364.9 (“System, method and computer program for decomposing a sampling task into a plurality of jobs”). Claim 1 was essentially directed to a method for the parallel execution of a sampling task where a sampling task was divided into multiple jobs, each job was executed in parallel using a parallel processing architecture and each job was terminated independently of the other jobs. The court saw the overall objective in the efficient parallelization of processing tasks during image rendering. The court held that the method was rendered obvious in view of the prior art, so that it left open whether the claimed subject-matter was excluded per se from patentability. Read the full decision (in German) here.

What’s your take on software patents in Europe?

Did I miss an interesting decision? Let me know in the comments below!

If you want to stay updated on the latest software patent case law in Europe, don’t forget to subscribe to the free email newsletter:

One thought on “European #softwarepatent roundup

Leave a Reply