Here’s another one of my posts that may make some of you yawn.
Will keep it short. I’ve just read a really good piece on why software should not be patentable. Thankfully, NZ law is going in that direction (read earlier piece about Simon Power sticking to his word supporting the Commerce Select Committee recommendation to exclude software from being patentable) though there may still be some intense discussion to come around the regulations that accompany the legislation.
Why do I care about this? It’s about innovation. And nurturing and supporting the NZ ICT industry which I believe has the capacity to help drive our country’s economic future.
The piece, called Why we need to abolish software patents, is written by Vivek Wadhwa 
an entrepreneur turned academic from UC-Berkeley, Harvard Law School and Duke University. He argues that fledgling startups have to worry more about some big player or patent troll pulling out a big gun and bankrupting them with a frivolous lawsuit than they do about someone stealing their ideas.
Brad Feld
, managing director at Foundry Group
The founders of the United States considered intellectual property worthy of a special place in the Constitution—“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” They had the concept right, but they surely never conceived of Amazon.com patenting clicks in an online shopping cart
Hat tip: nstranger retweeted by nzcspaul (Twitter)
I couldn’t agree more — and it’s great to see that you get this.
For the record, I work in software, I’ve managed large software teams in NZ and elsewhere, and I am a named inventor on software patents. At the moment, software firms see patents as ammunition. Even those firms that don’t enforce their patents against others need them to protect themselves, so they have something to trade off if they are attacked. Some of the largest software companies in the world (for whom I’ve worked) would benefit from the removal of software patents — they are a necessary cost for those firms, needed only because software patents exist at all. Of course, there are a few firms for whom patents are the basis of their business model.
The different with software vs hardware patents is that software is purely an idea. Software is an adequately precise human-readable description of how to perform a computation. Software patents are therefore an affront to freedom of speech.
Of course, what NZ does won’t make that much difference worldwide — and software is a worldwide market. The US (where software patents suffer from rampant abuse) and the EU (where software patents are largely restricted) really matter. But we should still do the right thing here. Every country that votes NO counts a little bit. I don’t think the US will change any time soon, the senate just don’t understand what software is, by and large. Look at their incredibly ineffective restriction on encryption technology via the Wassenaar Arrangement. Encryption is an idea. You can’t legally export the code in many cases, but you can print the algorithm on a t-shirt and ship anywhere in the world. Anyway, that rant is getting off topic…
Hayden P: “The US (where software patents suffer from rampant abuse) and the EU (where software patents are largely restricted) really matter.”
The DMCA and its harebrained attempts to impose DRM are a case in point. And the Aussies have found that out the hard way.
@DeepRed Yes, very much so. Unfortunately, the US is also trying to inflict its IP laws on other countries as conditions in their FTA’s.
We already seem to have a pretty vibrant softwage industry with Qbix and Peace and the like, if eliminating software patents helps expand it we should go for it..!
As a programmer, I can say that any gain I’d potentially get from software patents would be made much harder than the legal complications of dealing with them in general. Rather than closing off programming, mandating a faster turnaround into the public domain for antiquated software like older versions of MS Windows could really benefit programmers and the coding community when precursors to current OSes started becoming reverse-engineerable.
@Deepred: Part of the reason we should be working to advocate applicability of more principled laws during FTA negotiations, including intellectual freedom, labour and environmental standards. There’s real pressure from countries where powerful industries profit from broken laws to export acceptance of their laws via FTA, or even export the laws themselves in the cases of some more virulent industries, such as US drug companies trying to muscle out generic drugs.
Ideas are formed or developed within a community using a raft of contributed ideas and customs. The incentive to develop useful new tools need not be ownership of them. This is a distortion of our common good.
I’m intrigued by the apparent need to qualify why ’software patents’ should not be deemed patentable in New Zealand by reference to a paper directed at the issue from a US perspective.
Patents are national rights and are a form of social contract between the State on the one hand and patent applicants on the other. The long term public interest is served by the granting of a time limited monopoly on whatever basis and against relevant legislative criteria the State asserts in law. The long term gain, in my opinion, for society is negligible for computer programs as they are practically redundant by the time a patent is granted.
Be that as it may, the exclusion of computer programs from patentability (clause 15(3A)was a matter of policy. The Select Committee considered the arguments of Fisher & Paykel and the like and considered that on balance that society’s interests would not be served by allowing patents to computer programs.
The arguments against allowing ’software patents’ noted in the Wadhwa paper above may apply here in New Zealand or not; however, the decision to remove any doubt in the matter had been taken by the Select Committee.
As a side note: the conflation of the terms ’software patents’ with the term ‘computer program’ as it is recited in clause 15(3A) only serves to confuse the issues surrounding this already highly charged topic. The terms should be kept separate and distinct from one another.