The granting of software-related patents infringes Art. 14 of the German constitution (warranty of property)
This assumption is commented in the amicus curiae brief of the German BIKT e. V. regarding the proceeding G 3/08 before the European Patent Office. Here is an abstract about the main points:
- The exploitation rights of authors to their computer programs are property in terms of the German constitution.
- The granting of a software-related patent establishs a temporary monopoly for the bearer of the patent. In the scope of the patent nobody is allowed to use a program that is covered by the patent without the acceptance of the patentee. The authors of these programs are themselfes restrained to use their programs for commercial purposes
- In that effect the exploitation rights to the programs that are covered by the patent loses their value.
- Therefore the granting of software-related patents infriges the constitutional property rights of the affected authors.
- The arcane character of software that is distributed in binary form and the protection of software and software-related industrial secrets by copyright and competition laws offer a sufficient protection against imitation. At the same
time the protection by copyright law provides all authors of computer programs the opportunity to exploit their programs and the problem solutions that are the basis of such programs.
- The described intrusion in the exploitation rights of the authors can not be justified because:
- a protection of software-related problem solutions is not neccessary due to adequate alternative options of protection.
- the legislator must ensure as a basic principle that the economic value of creative works is assigned to the authors as a result of the constitutional warranty of property (German Federal Constitutional Court, Az.: 1 BvR 765/66 vom 7. Juli 1971, BVerfGE 31, 229 [240 f.]).
- The German patent act and the European Patent Convention must be interpreted in a way that the granting of sofware-related patents is not allowed.