By Reuven Cohen
In a bill passed earlier today, the Government of New Zealand announced that software in the country will no longer be patentable. New Zealand’s largest IT representative body, the Institute of IT Professionals, expressed relief and said the decision removed a major barrier to software-led innovation.
(1) A computer program is not an invention and not a manner of manufacture for the purposes of this Act.
(2) Subsection (1) prevents anything from being an invention or a manner of manufacture for the purposes of this Act only to the extent that a claim in a patent or an application relates to a computer program as such.
(3) A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.
In a post on The New Zealand Harald, Commerce Minister Craig Foss said that following industry consultation he had decided to remove the patentability of software from the Patents Bill, which is currently before Parliament. “These changes ensure the Bill is consistent with the intention of the Commerce Select Committee recommendation that computer programs should not be patentable,” he said.
According to Wikipedia, “Most countries place some limits on the patenting of invention involving software, but there is no legal definition of a software patent. For example, U.S. patent law excludes “abstract ideas”, and this has been used to refuse some patents involving software. In Europe, “computer programs as such” are excluded from patentability and European Patent Office policy is consequently that a program for a computer is not patentable if it does not have the potential to cause a “further technical effect” beyond the inherent technical interactions between hardware and software.”
In doing this, New Zealand is essentially taking the position that existing laws provides enough protection to software as it is; patents only serve to stifle innovation because of the ever-looming threat of being sued by so-called patent troll companies.
During its consideration of the bill, the committee received many submissions opposing the granting of patents for computer programs on the grounds it would stifle innovation and restrict competition. Internet New Zealand said Foss’ decision to amend the Patents Bill drew to a close “years of wrangling between software developers, ICT players and multinational heavyweights over the vexed issue of patentability of software”.
New Zealand’s biggest software exporter, Orion Health, also welcomed Foss’ decision. Chief executive Ian McCrae said obvious things were being patented under the current regime. “You might see a logical enhancement to your software, but you can’t do it because someone else has a patent. In general, software patents are counter-productive, often used obstructively and get in the way of innovation.”
Well done my Kiwi friends, well done indeed!
Update 1: This week, U.S. Senator Schumer introduced legislation that attempts to limit the ability for patent trolls to launch patent litigation. The Patent Quality Improvement Act aims to make it easier and cheaper for companies facing spurious infringement suits to defend themselves.
Update 2: Christopher Mims at Quartz points out that New Zealand “has never explicitly allowed the patenting of software in the first place, and excluding software from patentability would violate New Zealand’s international patent obligations. Instead, today’s amendment to the country’s in-progress patents bill (pdf) skirts international law in a creative way: the country’s government will instead declare that software is simply not an invention in the first place.”
“Further complicating matters, New Zealand’s amended law will still allow for the patenting of software when it is part of a novel piece of hardware. So, for example, software that does nothing but process legal documents while running on “conventional” hardware is not patentable. But the software that allows a clothes washing machine to clean clothes in a new way is patentable.