Chances and Risks of the Patentability of Methods of Digital Signatures (Chancen Und Risiken Der Patentierbarkeit Von Signaturverfahren)

Abstract

The intersection of patent law with the provisions on digital signatures is characterized by two problems: the interoperability problem and the problem of conformity with a plethora of technical rules established under German law. In contrast to compulsory licensing under competition law, compulsory licensing under patent law is an appropriate means in order to solve the aforementioned problems. Further, this paper holds that it is advisable to grant compulsory licenses on the grounds of interoperabiliity problems, as currently discussed in literature. However, harmonization with Article 31 of the TRIPS Agreement is indispensable prior to the adoption of such a claim. Alternatives do not exist. Neither a reduction of the scope of patents, nor a public domain scheme that the Government can establish pursuant to section 13 of the German Patengesetz (Patent Act) in cases of emergency provide for viable solutions.

Since the future European Directive on Computer-Implemented Inventions will significantly influence any regime that grants of access to computer software-related inventions, its implementation might require reconsideration of the above results.

Keywords: Copyright, competition law, patent law, digital signatures, interoperability, compulsory licensing, TRIPS, Directive on Computer-Implemented Inventions

JEL Classification: O31, O34, O39