Contextualizing the Software Patent Debate in Canada: A Practical Approach to Policy Development

There has been ongoing international debate regarding the patentability of software for at least 15 years. Despite being bound by international laws, which deal directly with the patentability of software (TRIPS), individual countries continue to justify vastly different legislative and practical patent regimes in this field of innovation. In a very traditional and conservative fashion Canada has placed itself carefully on the fence in this debate adopting an approach which falls somewhere between that of the U.S. and Europe, providing little practical guidance for businesses, lawyers or software developers in the industry. This paper seeks to establish an approach, solution and justification for the correction of these problems. Discussion in the area of software patents is often based substantially around patent law theory and statistical analysis. Such approaches disregard the context in which these laws operate. As a direct consequence the connection between software patents and innovation remains an area of substantial conjecture. As the basis for policy decisions this non-contextual approach leaves much to be desired. In Canada this situation is amplified by the fact that few significant efforts have been made to study the legal effects of patents on the Canadian software sector. Recognizing the gap between theory and practice this paper seeks to marry the academic debate over software patentability with concrete Canadian perspectives from inside the industry. To this end primary research based on personal interviews with representatives from three software companies, with innovation offices in Canada, is used to shed a contextual, Canadian and practical light on U.S. and EU patent law theory. The trend which emerged from these interviews was that Canadian software companies generally find software patents detrimental to their business objectives. Given the small sample size, confirmation of this trend within the broader Canadian software industry is not possible and further research is required in order to substantiate this papers recommendations. However, assuming that the software companies interviewed are representative of the Canadian software industry then the detrimental trend identified aligns the Canadian software industry with non-innovation theories of software patentability. This allows the paper to justifiably conclude that Canada should not extend patentability to software or in the alternative that a carefully considered extension of patent law which responds systemically to the unique needs of the software industry and other emerging technologies may be appropriate. Most importantly the paper stresses the practical importance of active contextual research during the development of clear and strong guidelines related to the patentability of software in Canada

Software Patents on Both Sides of the Atlantic, 23 J. Marshall J. Computer & Info. L. 815 (2005)

This comment addresses and analyzes the state of software patentability in the United States (“U.S.”) and European Union (“E.U.”). This comment discusses policies that drive changes and developments in patent law, the technical background of software, and the non-patent intellectual property protection for software. The comment further addresses the judicial precedent and the situation surrounding software patents in the U.S. and the legal situation in the E.U., including proposed changes in the Software Patent Directive. Finally, the article discusses common criticisms of current U.S. policies on software patentability by exposing the problems created by these policies and suggests corrective policies in the future

Patent Scope and Innovation in the Software Industry

Software patents have received a great deal of attention in the academic literature. Unfortunately, most of that attention has been devoted to the problem of whether software is or should be patentable subject matter. With roughly eighty thousand software patents already issued, and the Federal Circuit endorsing patentability without qualification, those questions are for the history books. The more pressing questions now concern the scope to be accorded software patents. In this Article, we examine the implications of some traditional patent law doctrines for innovation in the software industry. We argue that patent law needs some refinement if it is to promote rather than impede the growth of this new market, which is characterized by rapid sequential innovation, reuse and re-combination of components, and strong network effects that privilege interoperable components and products

Software Patent Law: United States and Europe Compared

Software is a global business. Patents are increasingly the protection of choice; as a consequence, international software patent laws are of growing importance to software vendors. This article focuses on European patent law and how it differs from United States law in regards to software technology. Statutes and relevant case law of both unions are discussed and compared, providing an introductory secondary source for scholars and practitioners

Why Patentable Subject Matter Matters for Software

Increasingly, courts weary from years of arguing about the scope of patentable subject matter for software patents seem ready to throw in the towel. Rather than continue efforts to craft a test for determining when a software invention graduates from an “abstract idea” or mere algorithm into a patentable invention, several recent Federal Circuit opinions dismissinely reject section 101 challenges as attacks that should have be made instead under sections 102, 103, and 112. This short essay criticizes this recent trend in patentable subject matter jurisprudence. Accused infringers look to section 101 for relief not because doing so is a convenient shortcut around more traditional checks on patentability, but rather precisely because traditional checks on patentability have proven to be woefully ineffective weapons against overbroad software patents

Physicality in Australian patent law

It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods – namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement

Limiting the Business Method Patent: A Comparison and Proposed Alignment of European, Japanese and United States Patent Law

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition…

The strategic use of business method patents: a pilot study of out of court settlements

A patent is an exclusive right preventing the use or exploitation of an invention by others than the owner of the patent. A patent can be accurately described as a statutory monopoly within the scope and the jurisdiction of its grant. Proprietary positions in electronic commerce are particularly critical because of the low barriers to entry in the digital environment, and the huge potential value buried in reengineering supply chains and direct retailing services