Managing IP is part of the Delinian Group, Delinian Limited, 8 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2023

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

A quiet but important step for software patents in Germany

Sponsored by


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 



more from across site and ros bottom lb

More from across our site

The country saw sweeping IP reform in 2020, but IMPI still needs to implement regulations governing the changes
Sources welcome the aims of the new UK Patents Court Guide, but some are unsure it will help juniors level up
US biosimilar cases will likely settle and patent thickets could be a bugbear for companies, say three in-house counsel and three private practice lawyers
The claim, filed this week against the University of California’s governing board, follows action by Accord Healthcare in October
We provide a rundown of Managing IP’s news and analysis coverage from the week, and review what’s been happening elsewhere in IP
EU lawyers say they should be allowed to cite bad faith at a much earlier stage in trademark disputes to avoid falling victim to squatters and ‘legal’ fakes
Amendments to the Patents Court Guide are a welcome step, but we must ensure everyone is on side
Counsel expect ripple effects from last year’s seminal decisions on patent term extensions and patentability of computer-related inventions, and much more
The Patent Trial and Appeal Board found that claims in a Novartis patent were obvious over the prior art
Rights owners say a copyright exception that would allow text and data mining for AI training would sell out the creative industries