Software patents exclusion may not be a done deal

The Government is coming under pressure to backtrack on a proposed IP policy change which could threaten the interests of some powerful multinational software companies.

The Commerce Select Committee released recommendations in May for the long-running Patents Bill to specifically exclude computer software from patent protection. This proposal has been well received by local software houses, open source developers, and the Internet community, but has caused consternation to (mostly US) companies which rely on software patents.

The Committee accepted submissions that:

• there is no ‘inventive step’ in software development, as ‘new’ software invariably builds on existing software; and
• software patents stifle innovation and competition rather than encouraging it, as patents can be granted for trivial or existing techniques.

Under current law computer programmes can be patented provided they produce a “commercially useful effect”. Proponents say that software patent rights are an essential incentive for developers. However, open source software is becoming increasingly ubiquitous. The open source theory is that technology should be available to all so it can be developed and improved for the greater good of society. 

There is support from both sides of the House for the proposed change.  Simon Power has pledged Government backing and Labour MPs Lianne Dalziel and Clare Curran say it is “a step toward helping New Zealand become more innovative.” 

Patent attorneys have generally disagreed with the proposal.  Some say software developers have been unfairly targeted when arguments made against software patents could apply to all technologies. Others think the Bill already addressed the problems of software patents by prohibiting applications for trivial or existing patents.

A few see patents as a means of protection for large software companies only. They say as patents are costly to procure and defend, smaller companies don’t use them as much, and copyright is sufficient protection.