Should software be patentable?

Should software be patentable?

Summary: Over the past few months, the New Zealand ICT community has been debating the issue of patents.


Over the past few months, the New Zealand ICT community has been debating the issue of patents.

Initially, a government Select Committee of MPs decided software was not patentable as it considered a new Patent Act. The New Zealand Computer Society said patents stifle innovation and creativity. However, there has been a u-turn, apparently following lobbying from the big vendors like Microsoft and IBM.

The latest government thinking is that patents that serve a "technical purpose" such as operating machinery should be allowable, while those that just process information should not.

There has certainly been much debate within the New Zealand ICT community — a debate that still continues.

As for me, I am not too sure either way, though the latest thinking seems a fair compromise. Certainly we need patents to protect the intellectual property of people that create innovations. They need to benefit from the fruits of their labour.

In a recent case, Microsoft pointed out that it spends millions every year developing new software. It is only fair and proper that it gets a return on that investment. If it gets no return, it would not bother investing that money and developing new solutions that benefit us all.

However, we also see that Microsoft can use patent law to suppress innovation by making its patents too overarching, affecting things it shouldn't.

It seems to me that the concept of certain generic sorts of software patents could well be made redundant thanks to the growth of open source, while remaining for specialist applications that have a technical purpose.

I expect there will be much debate still to come, with some sort of compromise like the one I've just put forward sure to feature in the future.

Topics: IBM, Emerging Tech, Microsoft, Software

Darren Greenwood

About Darren Greenwood

Darren Greenwood has been in journalism, not all of it IT, since the days of typewriters and long before the web spun its way around the world.

Coming from Yorkshire, he can be blunt, and though having resided in New Zealand, as well as Australia, for quite some time, he insists he is not one of the 'sheeple!'

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  • The problem is that the people in the patent office are not qualified to decide what is "reasonable" or "obvious" to a technical person, often leaving that for the courts to decide when a patent is challenged.

    This means that a company like Microsoft can patent clearly ridiculous things and a smaller company has no chance to overturn it, simply because they cannot afford the lawyers to fight them in court.

    The idea that patents "stifle innovation" is pretty silly. Patents were designed to ENCOURAGE innovation. It's the abuse of patents which is stifling innovation and I think removing software patents altogether is not the solution: encouraging the patent office to hire technically knowledgeable people so that they can make informed decisions about whether a patent is actually innovative and non-obvious is how you fix it. The downside of that is that it would make the cost of applying for patents much higher, but I see that as a good thing as well. If your idea really is extraordinary that it requires a patent, you should be willing to pay for it.
    Dean Harding
  • I think one big problem is the length. I'm not sure if software patents are different from regular ones but my understanding is in Aus patents last either 20 or 8 years. Given how quickly the technology industry moves it seems to me that if you have Software patents they should only last at most 5 years.
  • When you get someone able to patent the wheel ( you know that something is TERRIBLY wrong with the whole patent idea and system.

    Software should not be patentable - end of story. It should be and is, copyrightable through a licence, be it a proprietary EULA, Creative Commons licence or GPL/BSD licence.

    A software patent does NOTHING to increase innovation; how can it? If someone is not able to use and improve a design or software, we have to wait for a patent to expire before we can do something better with it. Yes, that comany gets the market share, but also gets to sit on it and do nothing to improve it. In the meantime they might be chasing up companies who are trying to produce something that may be a little similar to their product, and because they have a patent that is so encompassing (remember the wheel!) they embroil these companies in so much legal trouble that they just give up or go out of business? How is this innovative?

    And no I am not thinking of just Microsoft here. MPEG LA is another great example. Google comes out with WebM and MPEG LA says it MIGHT be similar to a patent they own, so don't use it. How is that innovative? They are effectively saying: use our product or don't use anything. Anti-competitive too, if you ask me.