NZ software patent law 'betrays' developers

The New Zealand Government has moved ahead with plans to ban patents on software, but an exemption to the ban has left open-source developers outraged.
Written by Josh Taylor, Contributor on

New Zealand Commerce Minister Craig Foss has moved ahead with a plan that was two-years in the making, which will deny patents for computer software, but an exemption on software embedded in other inventions has been seen as a "betrayal" of the open-source community, with the government siding with US software companies that lobbied for the law to be changed.

The plan to deny patents for computer software had been intended since 2010, but had stalled following criticism from Microsoft and other software developers.

Foss today introduced an amendment to the Patents Bill that would mean computer programs were not patentable, unless they were inventions that had embedded computer programs, in a move designed to bring the law into line with international standards.

The explanatory memorandum states:

Rather than excluding a computer program from being a patentable invention, new clause 10A clarifies that a computer program is not an invention for the purposes of the Bill (and that this prevents anything from being an invention, only to the extent that a patent or an application relates to a computer program as such).

But by using the words "as such", the New Zealand Open Source Society has said that the government has left open a massive loophole that will be exploited by large corporations to patent their software in New Zealand.

"With the removal of the explicit software patent exclusion, and the addition of two tiny words, 'as such', the Commerce Minister, Craig Foss, has more or less thrown Kiwi software developers under a bus."

"The minister may believe that replacing the explicit exclusion of software patents with an 'as such' is striking a clever compromise. If that is the case, he needs to be disabused of his mistaken impression: those six letters represent a legal loophole the size of a bus, which have made a mockery [of the] European Union patent legislation's intent: to block software patents."

The society said that it was a win for US corporations, who would use software patents to set back would-be competitors.

"With this decision, the national government appears to be showing whose side it's really on: after leading us down the garden path for two years, we now know it's not on the side of New Zealand software developers. The only word for it is: betrayal."

Documents obtained under Freedom of Information laws (PDF), show Microsoft and the Business Software Alliance asking the Ministry for Economic Development, back in 2010, for the clause banning all software patents to be removed. Microsoft, the BSA, IBM and NZICT met with the ministry in 2010, according to the minutes of the meeting. NZICT was reported to be happy with the ministry's comments that, after the meeting, it was intended that the law would be amended to allow embedded software to be patented.

Foss said yesterday that the legislation would "protect genuine innovations and encourage Kiwi businesses to export and grow".

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