Protecting IP in a post-software patent environment

My recent Computerworld article is now online:

The article briefly summarises some of the ways developers can protect valuable intellectual property if, as expected, New Zealand bans software from patentability. I avoided the pros-vs-cons debate, because the decision has been made (after an 8 year long review). For developers operating in New Zealand, software patents will not be an option. Software patents in other countries still are, though.

Meanwhile in a new development, a German appeals court has reversed a lower court and upheld a software patent:

… the highest German appeals court in matters of civil and criminal law overruled the country’s highest patent-specialized court and decided that a client-server software for the automatic generation of structured documents (such as XML or HTML) is an example of a patentable software invention… This decision has the effect that in Germany, a country in which software patents were previously only considered valid under relatively strict criteria, all software ideas are now potentially patentable as long as they are innovative from a purely formal point of view, meaning they’re at least marginally different from how a technical problem was solved before.

If this is a change in position (change being the only constant), does it represent a change in European policy? No – Courts do not (or should not) make policy. They interpret and apply law.  But if Europe does change its position (politically or judicially) on software patents, will New Zealand need to follow suit and reverse its expected software patent ban? Pressure to conform with international norms (if one emerges) and trading partner requirements may force a change down the track, but the New Zealand decision was born of widely supported policy, not judicial opinion (or judicial fiat for that matter).

Another judicial development still pending is the US Supreme Court’s ruling in Bilski, expected to be released in the near future. That decision could impact on the ability to patent business methods, which underlie many software patents (and vice versa).