04.28.18

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New Zealand and India, Two Nations That Reject Software Patents, Are Still Besieged by Patent Law Firms

Posted in Asia, Australia, Patents at 8:09 am by Dr. Roy Schestowitz

New Zealand postage

Summary: In lesser talked-about patent offices, such as India’s and New Zealand’s, software patents remain infeasible to enforce (let alone get) but patent law firms and maximalists keep trying to change that

OUR focus on the EPO and USPTO often distracts us from smaller patent offices, such as IPONZ, which still denies software patents in New Zealand (NZ), loopholes notwithstanding, just like in India and in Europe before Battistelli (who opened the floodgates).

The NZ “proposed bill was seeking to include software patents,” says Sarah Putt (Computerworld/IDG in New Zealand). She has just helped show that patent zealots and profiteers in NZ never really quit trying to introduce software patents down there. She said:

A private members bill introduced by National Party spokesperson for Science and Innovation Parmjeet Parmar, which proposes a second-tier patent system, has raised fears that the issue of ‘software patents’ is back on the agenda.

The Patents (Advancement Patents) Amendment Bill seeks to introduce a second tier system to make patents easier and less costly to obtain and “require a lesser advancement in order to be granted than the inventive step required for other kinds of patents”. It would also provide a shorter term of protection – the proposal being 10 years instead of 20 years.

When asked by Computerworld if her proposed bill was seeking to include software patents, Parmar replied: “The advancement patent is proposed to apply to the same subject matter permissible for a standard patent. Section 11 of the Patents Act which applies to Computer Programs is amended to insert “or advancement’ in there which actually clarifies that the Section is applicable to advancement patents too.”

[...]

ITP objects to software patents because it claims that the time frame is too long (even if this was reduced from 20 to 10 years) in the tech industry when innovation moves so fast. Matthews points out that 20 years ago Netflix was a small-time DVD mail order company and Google hadn’t been invented (until September this year).

This is definitely something to keep an eye on and keep vigilant about (we shall inform some contacts we have in NZ).

In other news, there’s this new article By Sudip K. Mitra and Alain Villeneuve (Vedder Price) explaining to patent aggressors how to dodge the Supreme Court’s decision and enforce software patents that are bogus in defiance of Alice. They pushed this nonsense in more than one site [1, 2], possibly in exchange for payments, and they also push for litigation (implicitly):

In 2014, the United States Supreme Court in a landmark decision in the field of Patent Law (Alice Corp. v. CLS Int’l)1 invalidated software patents related to mitigating settlement risk. Relying on the now-infamous Section 1012, the Court held that use of an intermediary to mitigate settlement risk in a financial exchange is a fundamental economic practice directed to a patent-ineligible abstract idea.

Well, the US has fallen in line with the rest of the world, except China. In fact, after Alice it’s even harder to get (or enforce) software patents in the US than it is in Europe (EPs/EPO).

Vaish Associates Advocates, in the meantime, pushes the illusion that software patents are possible and worth pursuing both in India and the US (both are hostile towards these in court). There are virtually no software patents in India. To quote their article:

Software Patenting In India And USA

[..]

In this paper, we would be discussing the various case laws which have determined the conditions for patentability of software in Indian subcontinent and USA.

So, what is software patent? It is a patent on any performance of a computer realized by means of a computer program. India was the first country in the world to provide statutory protection to the software through the Copyright Act, but from then, the journey has been quite slow as in this era of internet, there is a need for more protection to the software, and we are still an old-school regarding the same. The effect of ‘Make in India Campaign, hackathons, software innovations and the youth participation is severely mitigated as India is not able to provide protection, software deserves. About 60% of all make in India is happening through the software. IBM registered 8088 patents in a year, and 30% of which were filed in the name of Indian inventors. The need of the hour is dire and extreme to recognize the software not merely a literary work but as something which is invented on a routine basis.

If they are trying to insinuate that software patents are worth pursuing both in India and the US, then they are liars, not lawyers. Maybe that’s just what they are.

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