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BGH 1976-06-22: Dispositionsprogramm
Commemorate Banana Union Day

A landmark decision of the German Federal Court (BGH): 'organisation and calculation programs for computing machines used for disposition tasks, during whose execution a computing machine of known structure is used in the prescribed way, are not patentable.' This is the first and most often quoted of a series of decisions of the BGH's 10th Civil Senate, which explain why computer-implementable rules of organisation and calculation (programs for computers) are not technical inventions, and elaborates a methodology for analysing whether a patent application pertains to a technical invention or to a computer program. The Dispositionsprogramm verdict is especially famous for general and almost prophetic terms in which it explains that patent law is a variant of copyright for a specialised context, namely that of solving problems by the use of controllable forces of nature. Any attempt to "loosen and thereby in fact abolish" the concept of technical invention would lead onto a forbidden path, the judges warn.
title:
BGH 1976-06-22: Dispositionsprogramm
source:
BGHZiv 1977 Bd 67 p22ff; BGHZ 67, 22; Beschluss des X. Zivilsenats des BGH in der Rechtsbeschwerdesache X ZB 23/74
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The German Patent Office has on 1971-10-28, after an opposition proceding, decided to grant a patent for an application from 1960-12-20 concerning a process for determining changes in a multiplicity of entities -- e.g. for solving disposition problems -- with help of a computer. Claim 1 reads:

Process for determining changes in a multiplicity of chief entities and partial entities from which the chief entities are composed stepwise, with help of a computer comprising at least two external memory units on the input side and two such units on the output side, such that ..., characterised by the fact that ...

Claims 2 to 5 concern further elaborations of the applied-for process.

On complaint by the opponent, the Federal Patent Court (BPatG) has revoked the granting decision and denied the patent.

Against this decision a legal complaint was admitted but remained without success.

The Federal Patent Court gave as a reason for denying the patent that the applied-for process was essentially a pure organisation plan which as a mere "instruction to the human mind" has no technical character. This organisation rule was constructed in such a way that it utilised the normal possibilities of a computer as known from prior art. Therefore the weight of the invention did not lie in the field of technology and could on the whole be found without any need of considerations that belong to the technical realm.

2. ...

The attacks of the legal complaint remain without success.

...

The teaching that is claimed to be new and inventive does not belong to the realm of technology.

...

It pertains thus to a rule, by whose schematic application analogous problems can be solved, i.e. what in mathematical terminology is called an algorithm. Claiming this rule in connection with technical features of an apparatus and a processing sequence does not make any difference: whether a teaching is of technical nature or not does not depend on the verbal clothing of that teaching but on its material content. Therefore the legal complaint's objection that the disputed court decision did not strictly adhere to the claim wording is mistaken.

This rule of organisation and calculation, which, according to the oral explanations given by the plaintiff before the court, is not by itself the object of the patent application, has no technical character. How the concept of technology, which the caselaw and the literature have always regarded as the decisive criterion for distinguishing patentable achievements from non-patentable ones, is to be defined in detail, has been most recently explained by this court in the Rote Taube (red dove) decision. According to this, a patentable invention is a teaching for plan-conformant action utilising controllable forces of nature for achieving a causally overseeable result. It is beyond doubt that a rule of organisation and calculation, as described in this patent application, constitutes an instruction for plan-conformant action and that the execution of this instruction leads to a causally overseeable result. However this success (result) is not achieved by use of controllable forces of nature. It teaches, by which processes of ordering and calculating certain problems such as disposition problems can be solved, where this solution does not require the use of technical means. A human being equipped with the necessary commercial and mathematical knowledge can use this rule to reliably solve the disposition problem.

However human mental activity does not belong to the controllable forces of nature in the sense explained above. This concept refers only to those forces of nature which lie outside the activity of the human mind and are controlled by man with help of the human mind. Otherwise human thinking in its entirety would be subsumed under the concept of technology, with the result that this concept would lose its specific and distinctive meaning. The fact that the inventor has proposed to use technical means for practically executing the rule of organisation and calculation and that for this reason he has formulated the rule with the peculiarities and capabilities of the computer in mind does not change the untechnical character of the rule itself: it is of no meaning that in order to put the completed rule to practical application technical means can be used or should preferably be used: The rule, which by itself constitutes a mental-logical instruction does not become technical by the fact that during its application technical means -- be that the writing device or the computer of the person who applies this rule -- are used. It is not enough that technical means are occasionally used for applying an untechnical teaching; the use of these technical means must be an integral part of the problem solution itself: it must serve to achieve the causally overseeable result, and its non-use must inevitably cause the aimed-for success to remain unachieved.

The Federal Patent Court has described the untechnical character of the calculation rule by the formulation that for its finding no "considerations located in the technical realm" were necessary. Thereby it evidently did not mean the subjective mental path which the inventors happened to have gone but the mental steps which, according to the laws of logic, are objectively required. This reasoning, which the plaintiff unjustifiedly accuses of being a "historicist method", also leads to the result that the rule of organisation and calculation is by itself not technical.

...

The caselaw has characterised the notion of technology by its relation to the world of phenomena, contrasting with the world of reasoning/mind. According to the Wettschein (betting certificate) decision of the Federal Court, a technical invention is present, if an instruction is given to solve a technical problem by using specific technical means to achieve a technical result. In the Rote Taube (red dove) decision, this court generalised this definition so as to accomodate other forces of nature than those of physics and chemistry, e.g. those of biology. However in all cases the plan-conformant utilisation of controllable forces of nature has been named as an essential precondition for asserting the technical character of an invention. As shown above, the inclusion of human mental forces as such into the realm of the forces of nature, on whose utilisation in creating an innovation the technical character of that innovation is founded, would lead to the consequence that virtually all results of human mental activity, as far as they constitute an instruction for plan-conformant action and are causally overseeable, would have to be attributed a technical meaning. In doing so, we would however de facto give up the concept of the technical invention and extend the patent system to a vast field of achievements of the human mind whose essence and limits can neither be recognized nor overseen.

...

It can furthermore be argued with good reasons that, given the unanimity with which the jurisdiction and the legal literature have always insisted on limiting the patent system to technical inventions, the above reasoning constitutes a theorem of customary patent law.

Whether we want to postulate such a theorem is however not essential for this discussion, because also from a purely objective point of view the concept of technical character seems to be the only usable criterion for delimiting inventions against other human mental achievements, for which patent protection is neither intended nor appropriate. If we gave up this delimitation, there would for example no longer be a secure possibility of distinguishing patentable achievements from achievements, for which the legislator has provided other means of protection, especially copyright protection. The system of German industrial property and copyright protection is however founded upon the basic assumption that for specific kinds of mental achievements different specially adapted protection regulations are in force, and that overlappings between these different protection rights need to be excluded as far as possible. The patent system is also not conceived as a reception basin, in which all otherwise not legally privileged mental achievements should find protection. It was on the contrary conceived as a special law for the protection of a delimited sphere of mental achievements, namely the technical ones, and it has always been understood and applied in this way.

Any attempt to attain the protection of mental achievements by means of extending the limits of the technical invention -- and thereby in fact giving up this concept -- leads onto a forbidden path. We must therefore insist that a pure rule of organisation and calculation, whose sole relation to the realm of technology consists in its usability for the normal operation of a known computer, does not deserve patent protection. Whether it can be awarded protection under some other regime, e.g. copyright or competition law, is outside the scope of our discussion.

[ Reports about the Munich Diplomatic Conference of 1973 → BGH 1976-06-22: Dispositionsprogramm | BGH 1980-09-16: Rolling Rod Splitting (Walzstabteilung) Decision | BGH 1986-03-11: Beschluss Flugkostenminimierung | BGH copyright senate 1990-10-04: "Betriebssystem" (operating system) Decision | BGH-Beschluss Chinesische Schriftzeichen | BPatG Error Search 2002/03/26: system for improved computing efficiency = program as such ]
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