New Zealand tackles software patents

In the wake of Steve Ballmer’s announcement of his impending retirement, I was intrigued by a piece of news which was portrayed as potentially having an even more profound effect on Microsoft and the entire software industry.

A country which is universally recognised as being fantastic at playing rugby union (if not, necessarily, at winning world cups), has passed a law that effectively prevents people from patenting software programs .

New Zealand’s Patents Bill which passed its third reading on 28 August, five years after it was first drafted, contains a clause which states a computer program “is not an invention and not a manner of manufacture” .

In giving an example of how the act would work, the wording outlines a scenario where a process of automatically completing the legal documents necessary to register an entity involves a computer asking questions of a user. The answers are stored in a database with the information processed using a computer program to produce the required legal documents which are sent to the user.

“The hardware used is conventional. The only novel aspect is the computer program.
The Commissioner considers that the actual contribution of the claim lies solely in it being a computer program. The mere execution of a method within a computer does not allow the method to be patented. Accordingly, the process is not an invention for the purposes of the Act.”

It would be fair to say that the chief executive of New Zealand’s Institute of IT Professionals, Paul Matthews, was very happy with the outcome. In a press release, he said the organisation was “delighted to see” the passing of the bill and congratulated the country’s Commerce minister Craig Foss “for ensuring that software patents are excluded”.

He described the passage as “a breakthrough day where old law met modern technology and came out on the side of New Zealand’s software innovators”.

Matthews argued the patents system “doesn’t work for software because it is almost impossible for genuine technology companies to create new software without breaching some of the hundreds of thousands of software patents that exist, often for very obvious work”. He added that “the banning of software patents is a victory for common sense”.

While New Zealand is a small country, far far away, the thrust of most articles about the Patents Act was whether the law would have implications on patents elsewhere, particularly in the US. While software vendors could be unhappy at the prospect of not being able to patent particular processes, they could also gain more freedom to create new software without fear of being sued for breaching patents that have been granted for “very obvious work”.

It certainly would release small local developers from the concern of always looking over their shoulders to see if they had violated a patent that shouldn’t have been granted in the first place. And it would save them from having to waste money they don’t have on legal fees in the face of patent litigation.

One for all?

But here’s the thing. We live in a small country too. It’s not as far away as New Zealand but it has a very strong presence from IT multinationals. Judging by the tenor of the articles about New Zealand’s Act, you’d think this could be something worth investigating here (and Europe for that matter).

Well, it turns out that Ireland’s Patents Act of 1992 has a clause which specifically states that a program for a computer cannot be patentable. The relevant clause is pretty much a word-for-word copy of Article 52 of the European Patent Convention. So, we’re in “move along, move along, nothing to see here” territory.

Except… It turns out the EPO has actually granted a lot of software patents over the years despite publicly denying that it grants them. And it’s even got to the point where, as Glyn Moody points out in this blog post, the EPO included a software patent in its nominees for the European Inventor Award .

According to a joint motion adopted by the German Parliament, the number of software-related patents granted by the EPO is estimated “in the high five-digit range” . How can that be? The EPO has essentially been granting software-related patents in the guise of ‘technical procedure’ or ‘technical equipment’ that would be necessary to use the respective software.

Quite what happens next is anybody’s guess. There is talk of a Unitary Patent for Europe (although Spain and Italy have already opted out) but opinion is divided over whether this makes it easier for people to obtain software patents and for patent trolls a la the US approach or merely makes the patent process clearer and more efficient.

It’s all starting to get very messy and potentially even more of a minefield. On closer examination, it looks as if, at the moment, little New Zealand really is leading the way in this regard. Whatever happens, I can’t help wishing I’d written about Ballmer instead.

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