The New Zealand Patents Bill 2008: Taking the Opportunity to Revisit the Issue of Business Method Patents

Abstract

The patenting of business methods has been an issue in different jurisdictions not only after the US Federal Circuit held in 1998 that business methods are eligible for patent protection thereby abolishing the policy of former Courts and the United States Patent and Trademark Office to follow the “business method exception”, according to which business methods in general did not qualify as patentable subject matter. Nevertheless, this decision has raised public interest and gives reason to compare the attempts in different jurisdictions in regard to the patenting of business methods. In the last years, the call for a more defined scope of patent law has increased and recent decisions have required some kind of a technical link for a method to be patenteligible. This has been the attempt in the European Union for a while and seems to develop within US jurisdiction as well. In New Zealand, there seems to be the most radical way approaching: the Patent Bill 2008 recommends the exemption of software from patent-eligibility, a measure that will have a huge effect on the patent-eligibility of business methods. This course of action gives reason to examine the position of business methods in the field of patent law as such: do business methods fall into the scope of patent law or are there other incentives more suitable to protect business methods?