Tech Software and Intellectual Property Protection

A key part of any tech solution is the underlying software.  To appropriately protect tech innovations and the businesses built upon them, it is important to understand how intellectual property law treats software, particularly in the different global jurisdictions where you intend to operate.  In this blog entry I provide a brief introduction and encourage New Zealand tech businesses to ensure they’ve made the necessary considerations when drafting their business plans and conducting their IP analytics in order to best position themselves within the global IP landscape in which they intend to operate.

Generally, software is protected by copyright as a literary work, and this approach is recognised at an international level.  Copyright will subsist in both the source code (human-readable) and object code (machine-readable) of a computer programme and arises automatically with the creation of the work.  It is also possible, to some extent, to protect software by patents, however this is a much more complex area with practices varying across jurisdictions.

Up until a few years ago, many software-based inventions could be patented in New Zealand (under the Patents Act 1953).  The New Zealand Patents Act 2013, however, introduced many reforms to the New Zealand IP legislation, bringing it closer to many other global jurisdictions.  Amongst other changes, software as such is no longer considered patentable subject matter in Aotearoa.  The new legislation is based on UK law and, as can be seen below, does not entirely preclude software-based inventions from being patented.

In the UK and Europe, software as such is considered excluded patentable subject matter.  However, if an invention that includes computer software provides a technical contribution or effect, that may be patentable.  The claimed invention will need to define certain technical features which provide an inventive solution to a technical problem.

Recently, the EPO published new guidelines on computer-implemented inventions.  Broadly, the subject matter of the claimed invention must have technical character, but the claims themselves can contain both technical and non-technical features.  All the features that contributing to the technical character are considered during examination when assessing inventive step.

A number of software-based patent applications have now been prosecuted through IPONZ that provide further guidance as to the interpretation of the new law in New Zealand.  IPONZ appears to be following European practice in asking whether the technical contribution of the invention is patentable subject matter, irrespective of whether the contribution is implemented using a software programme.

In other jurisdictions, such as the USA for example, the situation is different.  The position on the patentability of software is not explicitly stated, leading to software being considered patentable subject matter.  Essentially, such patents are process patents where the process is computerised.  Provided the invention is more than just an “abstract idea” it may be patentable.  Recent case law has provided further guidance as to the eligibility of such inventions for patenting, however careful drafting of a patent application is required.

Internationally, we see similarities and close harmonisation across many jurisdictions on the patentability and IP protection of software innovations, but critical differences also exist.  Tech businesses intending to operate on the global stage should seek IP advice early on to help create a clear business plan and global IP protection strategy that identifies where they wish to operate and how to adequately protect their tech innovations in those jurisdictions.

Alistair Curson



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