2019 years 12 month 5 day, The District court in Munich, Germany BlackBerry (blackberry) with Facebook (Facebook) In a patent dispute between the two companies, Facebook Or will be violated BlackBerry Company related patents are prohibited from offering and publishing in Germany WhatsApp, Facebook, Facebook Messenger and Instagram Equal application.

There are a number of intellectual property and technical topics worth studying, In particular, the patentability of software and its impact on European technology products.

BlackBerry In a worldwide patent infringement lawsuit, the Munich District Court concluded (File number 7 O 5314/18) , Facebook Part of the software application Facebook, Facebook Messenger, WhatsApp and Instagram violated BlackBerry owned 4 patent, involve "Recommendation from friends (Suggested Friends) " And by email Whatsapp Chat history and other features.

The case and BlackBerry Related to a series of other legal actions filed around the world.

2017 years 2 month, BlackBerry Sue Nokia Infringe upon 3G and 4G Wireless communication technology related patents. 2018 years 3 month, BlackBerry In the United States yes Facebook Filed a lawsuit, Calling it a violation BlackBerry the 7 Different patent, Such as tagging people in photos, Get name suggestions in the search bar, As well as providing an unread mail counter on the application icon.

in 2018 years 4 month, BlackBerry right Snapchat (serab) Filed a lawsuit. 2019 years 2 month, BlackBerry Will again Twitter (Twitter) Take to court, charge Twitter Using software developed by the company without a license. This series of lawsuits has led people to BlackBerry And those who intend to file a large number of patents in order to obtain high compensation from the company suspected of infringing "Patent troll" conflate.

"Patent troll" The purpose of filing a patent application is simply for profit, Not to protect its market position from competitors. but, BlackBerry Changed business strategy, They no longer make their own phones, Instead, it persuaded different companies to pay for the use of its vast portfolio of patents, This practice makes "Patent troll" The impression has been changed.

but, In this case, The Munich district court's decision is not legally binding. Facebook He said he would not only appeal to Munich's Higher Regional Court, It will also appeal to the federal patent Court BlackBerry Invalid patent.

but, Facebook Said the lawsuit would have no effect on consumers, Because it is ready to update its apps to non-infringing versions if necessary. You should know, once BlackBerry Deposit contract 160 A deposit of ten thousand euros, Then the court might "temporary" Execute the judgment, Therefore Facebook You have to be prepared in advance.

German and European software patentability because inventions must meet certain requirements in order to be eligible for a patent, Therefore Facebook Aim at BlackBerry The protection of software patents to take legal action is reasonable. All patents must be novel and creative, And easy to be used in industrial production. usually, As long as one of the above requirements is not met, Most patents are challenged during or after application.

On the patentability of software, "German patent law" (GPA) and "European patent convention" (EPC) All provisions, "Computer program" Shall not be considered a patentable invention. Therefore, Whether software can be patented has always been a controversial issue, Because in essence, Most software is "Computer program" , Because it works for all types of computing devices, Such as smartphones, Personal computer, Mainframe system, Even self-driving cars and other Internet of Things devices. but, This exception applies only to "Computer program itself" , It does not apply to inventions involving software programs. Pure concepts or mathematical laws must be distinguished from technical inventions. Specifically speaking, Concepts or mathematical laws may not be patented because the public has a free right to use them, A technological invention, on the other hand, gives the inventor the exclusive right to use and develop it for a certain period of time. If the software acts as "An invention implemented by computer" Part of the technical program or equipment played a guiding role, Then it can usually be protected.

but, The invention behind the software must meet the same requirements as any other invention, It must include the ability to use technical methods (Like in a car ABS brake) Instructions for solving technical problems. Therefore, In embedded system (Especially in autonomous driving solutions or software-based ones 5G In the infrastructure) There are many software patents in the environment.

In addition, There are also many software patents in the area of blockchain or distributed ledger technology, It is mainly used in encryption solutions. but, Social media apps are "classic" Application program software, But it's not usually a common area for patents. In a word, Software patentability must be evaluated on a case-by-case basis.

So far, German and European patent offices and courts have developed different case law for reference. Whether software is patentable requires precise legal regulations and technical definitions. If someone uses a piece of software without a license or without paying a royalty, The owner of the patent can then not only ban the use of the software, You can also disable the same solution.

as BlackBerry Do the same thing, This could be a very good source of income.

Software copyright protection

but, Software that does not meet the requirements for patent protection cannot be protected by any patent. so, Copyright protection is another option. In principle, Any type of software can be copyrighted. According to GCA The first 2 (1) article 1 point, software——Or to be more accurate, It's human readable source code——Can be protected as a written work. In addition, GCA (69a ff. ) It also contains special protection provisions for some computer programs, These regulations mainly come from "European computer program instruction" (2009/24/EC) . Therefore, Copyright can be the primary protection for most software. but, Compare that to patent law, Copyright law offers far less protection. The reason is that copyright protection applies only to copyrighted content (Usually source code) Plagiarism that is essentially the same. In addition, According to the Court of Justice of the EU (ECJ) Case law of, The copyright protection of a computer program does not include the functionality of the program.

Therefore, If the computer program suspected of copyright infringement was created without copying a previously existing program, But it does exactly the same thing, There is no infringement. But according to patent law, If the developer of a previously existing program has applied for and obtained a software patent, Then the same case could lead to different outcomes, The same function also constitutes patent infringement. The consequences of patent infringement are according to German patent law, The patent holder may issue against the infringer "Stop and terminate (cease-and-desist) " Notice and claim damages. Losses can be calculated based on virtual market standard royalty rates. in BlackBerry v Facebook In the case, Only consider Facebook The large number of users of the application, BlackBerry You can earn a handsome income.

but, For the infringer, "Stop and terminate" Notification is often the more critical factor, Because it will be related to the future business development. Generally speaking, After the patent infringement, There are 3 A way to deal with it "Stop and terminate" notice.

First of all, An infringer can simply stop using an application that infringes another person's patent.

secondly, The infringer may obtain a license from the patent holder by paying a royalty.

Of course, This only works if the patent holder agrees to license it. Generally speaking, In addition to the principle of fair and reasonable without discrimination (FRAND) Outside the case, Patent holders cannot be forced to license. third, The infringer may resolve the patent infringement issue by himself.

In this case, Facebook This solution was chosen, This seems to suggest that BlackBerry The scope of the patent only has a limited impact on the application as a whole. Apart from the above 3 Outside the method, The infringer will also have the No 4 Species selection, And that is to fight back. Facebook This approach was also adopted. if BlackBerry Can be found invalid because the patent does not meet the requirements for obtaining protection, Then it makes sense to fight back.

Whether social networks will end? obviously, This is not the beginning of the end for social networking. but, Even image Facebook and Google Such software companies also have to find a way to understand software patents. With the popularity of digitization and software applications, Software patents will become more and more important. This is not only "Patent troll" target, At the same time, it is also the magic weapon that relevant market participants seek to occupy the leadership position in the software market.

In any case, BlackBerry v Facebook The case will not be the last. Software companies need to be prepared.

Summary of key points

First of all, Software can be patented under the same conditions as any other invention. "Computer program itself" The statutory exception to patentability does not preclude "An invention implemented by computer" The likelihood of being granted a patent. Patent protection provides a wide range of protection, So the economic returns are huge.

secondly, Generally speaking, Copyright law provides a framework for software protection, And adjusted in line with EU law. But it turns out that, Readily available protection is usually of limited effectiveness.

third, The legal consequences of intellectual property infringement include cessation and termination of the infringement and damages. Although damages may result in high costs, But stopping and terminating may affect the future development of the entire business.

fourth, Cease and desist notices shall be issued, The infringer may, depending on the circumstances, make a decision 3 Choose between different methods: Stop using infringing apps, Obtain a license or create an alternative solution. Finally, If the infringing patent is likely to not meet the requirements of patent protection, The patent itself can be countered.

(Compiled from www. lexology. com)

Reprinted from China Intellectual Property Network   translation: Wang Dan　proofread: Liu Peng

disclaimer: This website reprint articles are from the Internet, Does not represent the views of this website or confirm the authenticity of its content. If the source is mislabeled or the copyright of the article is involved, Please contact this website, This website will be corrected in due course, delete, thank you.