A quiet but important step for software patents in Germany

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

A quiet but important step for software patents in Germany

Sponsored by

maiwald-logo-cropped.PNG
spiral-3112405-1280.jpg

Simon Lud of Maiwald explains how a German court judgment is advantageous for patent applications in the fields of artificial intelligence and quantum computing

A 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. The decision is also crucial for the most important key technologies, such as artificial intelligence and quantum computing.

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. 

The patent in suit

With the present decision, the BGH confirmed a decision by the German Federal Patent Court to uphold patent DE 600 31 088.4. The patent in suit relates to a method for presenting data stored in a data storage device of a server, where a unidirectional or one-way data path is used, and no backtracking is possible. 

Claim 1 of the patent in suit reads as follows: 

"Method for presenting data stored in a data storage device (2) on a data server (3) for a user, wherein the user accesses the data server via a network, wherein in the process between the access to the server and the presentation of the data at least one data path is used, over the control data associated with the selection of data are to be sent, wherein the at least one data path is unidirectional.”

Analysis of the claim

First, it is remarkable that the BGH considers the question of the technical character of the features of the above patent claim to be so clear and positive. The BGH therefore considers a deeper discussion, or any further reference to the corresponding case law and the principles established therein, to be dispensable.

Second, it is important that the BGH interprets the criterion for the technical character – that a data processing program takes into account the technical circumstances of the data processing system – very broadly. 

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.

 

 

Simon Lud

Partner, Maiwald 

E: lud@maiwald.eu 

 

more from across site and SHARED ros bottom lb

More from across our site

Patrícia Paias explains why she loves the science and business behind an idea and why potential rights owners must avoid the ‘file and forget’ philosophy
Lawyers eagerly await news of what IP specialist Sir Colin Birss will bring to one of the England and Wales judiciary’s most important roles
María Aurora García of Berken IP explains how intellectual property rights holders can use customs monitoring and online enforcement tools to identify parallel imports and support compliance with consumer protection rules
The Jakarta-based firm says personal networks and a distinctive strategy can help it guide foreign clients through what can be a tricky IP landscape
Munich litigation boutique formed by former Taylor Wessing partners continues expansion as it seeks to cement its position in the UPC market
Yvonne Tang and Siau Wen Lim, the second and third IP specialists to sit on the firm’s management committee, say IP is ‘uniquely positioned’ to support cross-practice work
As competing firms come under common ownership, clients may care less about formal conflicts and more about how openly firms discuss them
Facing increased lateral movement and in-house competition, firms are investing in flexible billing hours and tailored career progression to improve associate retention
As the US reflects on 250 years of independence, patent lawyers say innovation is reshaping old hiring priorities, with firms seeking broader IP expertise over specialisation
The Nokia v Acer ruling in the UK suggests arbitration is moving from the sidelines towards the mainstream of global FRAND disputes - and could reshape forum strategy in the process
Gift this article