Software patents as such: Software patentability in New Zealand under the Patents Bill

<p>This paper examines the patentability of software under the Patents Bill. It attempts to determine how a New Zealand court will interpret the provisions of the Patents Bill that relate to the exclusion of software, and to what extent the “as such” exclusion will apply. It does this by looking at principles of statutory interpretation and the relevant English and European case law on the matter. It concludes that a New Zealand court will interpret the provision in accordance with UK precedent to give it a narrower interpretation than that given in Europe. The paper then examines the consistency of the provisions with the relevant international law before discussing some problems that may arise regarding market incentives and distributed systems. It proposes that the provision strikes an appropriate balance between protection and innovation in line with Parliament’s intent.</p>

Software patents as such: Software patentability in New Zealand under the Patents Bill

<p>This paper examines the patentability of software under the Patents Bill. It attempts to determine how a New Zealand court will interpret the provisions of the Patents Bill that relate to the exclusion of software, and to what extent the “as such” exclusion will apply. It does this by looking at principles of statutory interpretation and the relevant English and European case law on the matter. It concludes that a New Zealand court will interpret the provision in accordance with UK precedent to give it a narrower interpretation than that given in Europe. The paper then examines the consistency of the provisions with the relevant international law before discussing some problems that may arise regarding market incentives and distributed systems. It proposes that the provision strikes an appropriate balance between protection and innovation in line with Parliament’s intent.</p>

Patent Absurdity

The main reason a lawyer will give for not reading a software patent is that, if you run afoul of the patent and it can be shown that you had knowledge of it, your company will incur triple the damages that they would have, had you not had knowledge of the patent. That seems like reason enough to avoid reading them, but there is an even better reason, and that is, as design or technical documents, software patents suck.

Issues to Consider Before Asserting A Software Patent

Software patents have garnered a lot of attention in recent years due, at least in part, to the proliferation of software-enabled devices, such as smartphones and tablets, and the use of software to control a range of devices from automobiles to kitchen appliances. Enforcement of software patents involves unique legal issues that should be considered before asserting a patent against an accused infringer. A primary issue to consider is whether the patent claims are still patent-eligible under recent changes in the law. Also, certain types of software patents are vulnerable to attack in U.S. Patent Office proceedings, but these proceedings are not available unless the patent owner takes step to provoke them. In addition, software inventions are often implemented as method patents, which have unique requirements and restrictions that should be considered. For example, steps of a method patent must all be performed by an accused infringer in the United States and must all be performed by the same entity (or under the direction or control of that entity). Where a software invention is not implemented as a method patent, pre-suit damages may not be available unless the patentee's own products are properly marked with the patent number, and software has very different requirements for marking than more tangible products. A careful consideration of each of these issues is essential before moving forward with a lawsuit.