Writings on technology and society from Wellington, New Zealand

Friday, June 19, 2009

Software patents – unwelcome and unwanted

Software patents are not currently available in New Zealand, although several companies have tried to get “by the back door”, i.e. by tying the software idea they want to patent to some piece of hardware.

A software patent is a state-enforced monopoly on a idea. They exist in the US and some other countries, but not in many places including New Zealand. We don’t need or want them here. If you want some reasons, here are five good ones:

1) There is no benefit. Patents are intended to incentivise innovation by allowing an inventor a monopoly they can exploit for money. There is no shortage of innovation, however, in countries and communities that do not use software patents. The whole of Linux would be a good example.

2) There is serious harm in software patents, because they prevent others from using ideas. The whole of our technology, and in fact our whole culture as the human species, is built upon us using ideas others have had and developing them further.

3) Software patents lead to unintended bad consequences. Software patents have proved hugely detrimental in the US where they are often used for anti-competitive purposes. Just the threat of being sued over a software patent is often enough to stop a new product in its tracks, without that patent ever reaching court and being tested.

4) There is a large deadweight cost in legal fees and court costs which simply does not exist without software patents.

5) They can’t be awarded fairly. Patent offices overseas have proved incapable of determining what a valid software patent is and have consequently awarded patents on all kinds of obvious things. Sometimes these get overturned some years later after pressure from the community, but often they hang around and frustrate new software.

We don’t need or want software patents in New Zealand.

posted by colin at 9:01 pm  


  1. You have to submit concrete proposals on which amendments to propose to the NZ patent law.

    It is good to talk about “no software patents”, it is better to propose concrete and precise amendments.

    Here are some of the proposals:

    A claimed object that consists only of instructions for use of generic data processing hardware (universal computer), also called “program for computers” or “computer-implemented solution”, is not an invention in the sense of patent law, ***regardless of the form in which it is claimed.***

    A claimed object can be an invention in the sense of patent law only if it contributes knowledge to the state of the art in a field of applied natural science.

    Comment by zoobab — 20 June 2009 @ 7:52 am

  2. Thank you, Benjamin, for your comment. But, as software patents are not currently part of New Zealand law, it is not up to me to propose a law change, concrete or otherwise. Rather the opposite.

    My purpose in writing the post was to provide New Zealanders who don’t understand the issue or who feel the that software patents are a bad thing without knowing why with arguments they can use if the New Zealand government looks like implementing software patents.


    Comment by colin — 20 June 2009 @ 12:34 pm

  3. Colin is right, the argument in NZ is about arguing why there should be no addition of patents, not for the removal.

    Although NZ has some software patents I believe they require tying the software to a mechanical component.

    In related news, in the US David Kappos (IBM) may soon be leading the USPTO. His predecessor was of the opinion that “we must also actively educate the world that it [our patent system] is fundamentally the best system” whereas Mr Kappos has said “Trivial patents are being granted. By contrast, the system is better in Europe.” While it’s hard to guess what Mr Kappos will once in power that’s at least a good sign.

    Comment by Matthew Holloway — 20 June 2009 @ 3:25 pm

  4. Err… are you sure software patents “are not currently available in New Zealand”? What about 525094: “System and method for user modification of metadata in a shell browser”? How is that tied to a “mechanical component”?

    See also
    “I consider that business methods and software should continue to be patentable”.

    Comment by Anonymous — 22 June 2009 @ 11:46 am

  5. Software patents are available in NZ, provided the other usual criteria are satisfied.

    Comment by Guy Burgess — 23 June 2009 @ 2:13 pm

  6. […] most urgent news comes from New Zealand, where Free software folks have noticed some disturbing developments following similar recent attempts to disrupt copyright law. Software […]

    Pingback by Patents Roundup: Microsoft, Danger in New Zealand, and Rise of Opposition | Boycott Novell — 23 June 2009 @ 10:42 pm

  7. Software is the only field of human endeavour where some are claiming the need for two kinds of legal protection—copyrights and patents. What’s so special about it, that it needs to double-dip the legal system? Everything else we do only gets one kind of protection.

    There are also economic studies showing that patents as a whole have questionable effectiveness in “encouraging” invention. But that can be a war of words for another time. :)

    Comment by Lawrence D'Oliveiro — 24 June 2009 @ 8:55 pm

  8. As I read the new patents bill, every method of manufacture that is not specifically excluded is patentable. So I think we *do* need to propose an amendment to Clause 15 (exclusions), to state that computer software is not a patentable invention.

    Comment by John Rankin — 26 June 2009 @ 12:36 pm

  9. Please send a submission to the Commerce Committee informing them that the Patents bill has forgotten to review software patentability, even when they said it would. Also suggest that software should be added to the exclusion list. See for details

    Comment by Bevan — 26 June 2009 @ 1:49 pm

  10. We should be alligned with the rest of the world. There is no point in having a different patent system to Europe, Eurasia, USA etc.

    There is no point in New Zealand doing things differently becasue we have not taken IP seriously enough in the past and even in the present

    Comment by Rob Miller — 2 July 2009 @ 10:31 am

  11. The arguments against software patents have a fundamental flaw. As any electrical engineer knows, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits. For more information on patents and innovation see

    The Myth that Patents are a Monopoly

    A patent gives the holder the right to exclude others from making, using or selling their invention. 35 USC 154. It does not give the holder the right to make, use or sell their invention. A monopoly is an exclusive right to a market, such as an electric utility company. An electric utility company has the exclusive right to sell electricity in a certain territory. Since a patent does not even given the holder the right to sell their invention, let alone an exclusive right to a market, it is clearly not a monopoly.

    When a person describes a patent as a monopoly to be consistent they should also state that they have a monopoly over their car or over their house. In fact, they have more rights in their car and house than a patent gives the inventor over their invention, since you have a right to use and sell your car or house. A patent does not give these rights to an inventor over his invention. All invention are built upon existing elements (conservation of matter) and if the elements that the invention uses are patented, then the inventor will not have the right to sell their invention without a license.

    Some economists argue that a patent is designed to give the holder monopoly power. Those economists who are consistent also state that all property rights give some monopoly power. The property rights are monopolies thesis shows how confused economic thought is on this subject. The only logically consistent definition of a monopoly is an exclusive right to a market.

    People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.

    For more information on patents and innovation see

    Comment by Dale Halling — 12 July 2009 @ 3:12 am

  12. Dale

    It’s certainly not true that “as any electrical engineer knows” software may be replaced by hardware. It’s fanciful to consider building a hardware machine to replace something as complex as, say, Linux or Windows with no software components. The machine would be huge, and desperately uneconomic. The word “impractical” doesn’t begin to describe this notion.

    Using arguments like this should get someone laughed out of court.


    Comment by colin — 13 July 2009 @ 8:13 am

  13. I side with Dale and not Colin – just look at the basic functions of a processor such as AND, they are performed using harware. The engineer has the choice to use all hardware logic to control a machine or use a programmed embedded system. Why would it be wrong for an avionics designer to get a patent for an embedded system even where the only inventive activity related to the software? We need to be more precise when talking about “software patents”.

    This includes distinguishing them from business method patents. In any event the first of those which reached the High Court was invalidated on the bsis it was not an invention as defined under today’s equivalent of the Bill’s clause 13. And clause 13 has been drafted to ensure the applicability of decisions of the courts under the existing Patents Act, such as excluding claimed processes which are in reality no more than what the law calls “mere schemes”.

    Comment by Ken — 26 August 2009 @ 10:45 am

  14. If software should be patentable because it can replicate the functions of hardware, can that same argument be used the other way? To make mechanisms copyrightable because they can replicate the functions of software? If not, why not?

    Patents ARE monopolies. Monopolies are anticompetitive. End of story.

    Comment by Lawrence D'Oliveiro — 31 August 2009 @ 10:20 pm

  15. […] Government’s new Broadband roll out, the continuing debate on Section 92A, or the issue of software patents and forthcoming patent reform. September 21, 2009 | Filed Under […]

    Pingback by A Note from the new Cyberlaw Fellow : CyberLaw — 21 September 2009 @ 10:22 am

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