The past few months have been a rocky time for patent law in New Zealand. Its millions of citizens and many more millions of sheep have been on the edges of their seats and pastures waiting to see what the NZ government ultimately decides regarding whether software can be patented. Well, the decision has just come in: Software is unpatentable. At least for now.
Some background on why we can’t be sure this won’t change many more times: Back in March, there was an official announcement made by the NZ government that they felt software was outside the boundaries of patent law. And software programmers rejoiced in their abundance of wool products. But then, in June, it appeared that they had changed their minds after the work of some powerful pro-patent lobbyists. And with all the headlines that came out then compared to the ones coming out now, it makes you wonder how many times the phrase “after all” can apply to a single issue.
But there is a gray area: Inventions with embedded software can, in fact, be patented. The worry here is that this loophole will be manipulated in such a way that a few general software patents manage to sneak through the new decision.
Perhaps the best way to elaborate the argument against software patents and show how this decision got reversed is to highlight the outcry from NZ software producers themselves:
Orion’s Ian McCrae recently stated:
Obvious things are getting patented. You might see a logical enhancement to your software, but you can’t do it because someone else has a patent. It gets in the way of innovation.
If an inventor has a really original and outstanding idea, then a patent might be merited. But, in general, software patents are counter-productive and are often used obstructively.
We are a software company. Our best protection is to innovate and innovate fast.
Jade sent me this note in support of NZCS’s position on software patents:
Jade Software Corporation does not support patents related to software.
Reflecting this position we withdrew from applying for patents a number of years ago.
We believe the patent process is onerous, not suited to the software industry, and challenges our investment in innovation.
As I understand it, Orion and Jade together represent around 50% of New Zealand’s software exports, so the fact that they have come out so strongly against is significant.
If you want to read a full-length, sketchily anonymous article explain the pro-patent lobbyists position, you can do so here.
For now, this is a victory for many software creators in New Zealand and it should set a precedent globally, to the extent that the little neighbor of the land down under gets the respect it deserves. But we’re going to hesitate on saying that they’ve made the right decision for programmers “after all.”