Today the Bundespatentgericht (Federal Patent Court of Germany, BPatG) held a full-day nullity (invalidation) trial at the conclusion of which Judge Vivian Sredl, who presides over the Second Nullity Senate, announced the ruling that EP0618540 on a "common name space for long and short filenames" is invalid in its entirety (including Microsoft's proposed amendments) because the court found that all of the elements distinguishing the patented invention from the prior art (which includes a Linus Torvalds post to a mailing list) did not satisfy the technicity requirement under European patent law. Microsoft can and presumably will appeal this decision to the Bundesgerichtshof (Federal Court of Justice, BGH), the country's highest court apart from a specialized constitutional court.
The expected appeal will be interesting because the same senate of the BPatG had previously invalidated it but the BGH then reversed that decision. A reversal may happen again. Despite my longstanding opposition to software patents I have to say, just to be realistic, that this patent is far from finished. Counsel for Microsoft argued today that a finding of nullity for a lack of technicity by the BPatG would be inconsistent with the aforementioned April 2010 ruling by the BGH, paragraphs 31 and 32 of which stated that the patented invention met the technicity criteria under Article 52 of the European Patent Convention, the article in European patent law that prohibits patents on computer programs "as such".
The BPatG judges said today that its decision does not change anything about the BGH's finding of technicity for the field in which the patented invention was made, but that current case law enables and requires a technicity analysis for each and every claim limitation that is novel over the prior art. Non-technical claim elements do not count in the context of an inventive step. Counsel for Microsoft did not at all disagree on a limitation-by-limitation technicity analysis but argued that the BGH had already found, in its April 2010 decision, the relevant claim limitations to be technical. The court and Google's Motorola, which brought the nullity complaint that led to today's decision and lost an infringement case over this one in Mannheim last year, said that new prior art presented in the current proceeding raised a new set of issues with respect to novelty and non-obviousness.
The BPatG will issue a written ruling, which typically takes three to four months after a hearing. Thereafter, Microsoft can appeal (as a matter of right) the decision to the BGH, which I'm pretty sure it will. Unless Microsoft and Google settle their patent dispute, an appellate hearing before the BGH will likely be held in the second half of 2015 or the first half of 2016. The patent is going to expire next spring.
Thus far not a single one of the patents at issue in the smartphone-related disputes I watch has survived a Federal Patent Court hearing in its granted form, and only two of them were affirmed in an amended, substantially narrowed form. To the extent that the BPatG's nullity decisions are appealed and the related appeals adjudged (which happens in only a fraction of all cases due to earlier settlements or surrenders), a rather high percentage (a patent attorney whose clients don't include today's parties told me it's about 50%) are reversed.
At any rate, today's German ruling is good news, for the time being, for Google, which experienced a dreadful appellate hearing before the United States Court of Appeals for the Federal Circuit yesterday in the Oracle Android-Java case.
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