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In the past two years we have seen a number of quite interesting decisions of the German Federal Court of Justice (Bundesgerichtshof; BGH) dealing with patent-eligibility of software-related inventions.

The first decision in the row was X ZB 22/07 („Steuerung für Untersuchungsmodalitäten“, “Control of Examination Modalities”) of 20 January 2009, in which the BGH analysed the circumstances under which an embedded software represents statutory subject-matter (see comments). In this decision the BGH sketched a two-step approach to examine whether or not an invention is sufficiently “technical” to qualify for patent eligibility:

  1. Is the subject-matter a “technical invention” as required by § 1 I PatG ?
  2. Does the invention fall under the exclusion of a “computer programs as such” as requited by § 1 III No. 3, IV PatG ?

An additional third step completes the examination scheme:

  1. Do the technical features render the invention novel and inventive over prior art?

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