Well played, Kiwis

Will other nations follow suit on New Zealand’s software patent ban?

Lucy Carey

To a chorus of glee from developers around the world, New Zealand makes the landmark decision to ban software patenting, on the grounds that software is not an invention.

Although Peter Jackson’s
monster packed romps through New Zealand’s verdant forests and
spectacular mountain ranges had tourist board chiefs rubbing their
hands with glee, over in the tech sector, decision makers have an
entirely different attitude to trolls.

After five years of feverish debate, lobbying, and a fair amount
of dithering, New Zealand has effectively killed off patent
trolling with a landmark halt on software patenting.

The new ‘Patents Bill’- which was first conceived back in 2008-
definitively states that pure software (that is to say, anything
which is unattached to a dedicated piece of new hardware) is “not
an invention,” and thus cannot be granted a patent within New
Zealand. Existing software patents will continue to stand, but for
the meantime, the stage has been set for a litigation-free
development process.

Without the need to acquire and then vociferously defend
patents, a considerable amount of capital is also freed up to
channel into research and development.

Institute of IT Professionals (IITP) chief
executive Paul Matthews congratulated the New Zealand government on
their nea
r-unanimous passing of the bill,
and commented that it was a unique day, “where old law met modern
technology and came out on the side of New Zealand’s software

Since the early 1960s,
the matter of whether software- essentially an assemblage of
mathematical formulae, abstract ideas, and freewheeling mental
gymnastics- can really be subject to patenting has been a hot

A potential ban on software patents has been
floated around by other governments too, but this is the first time
any concrete ruling has been upheld. Essentially what it boils down
to is the nature of the local market and the actors within

With technical prowess and R&D helping to
drive development in South Asian BRIC economies, the Indian
Parliament came down in favour of maintaining an open source based
protocol.  Similarly, New Zealand’s technology sector is small
but growing in importance. At this stage, it makes much more sense
to create an environment for new and burgeoning companies to be
free to experiment and grow.

Whilst many developers in the US would argue
heavily for abandoning the cumbersome patent process (with so many
companies battling it out for alpha dog status in the increasingly
crowded smartphone and tablet market), software patents represent a
crucial way of controlling competition or as inoculation against
multi-million pound lawsuits. Essentially its a cold war scenario,
and to disengage could be tantamount to annihilation.

So-called ‘patent trolls’ hoard
intellectual property from defunct companies
solely for the purpose of making revenue from patent rights- a
practice which led to over half of all patent violation lawsuits
filed in 2012, according to the Wall Street Journal.

Titans like Google and Microsoft are purported
to stockpile patents for the express purpose of avoiding
litigation, rather than protecting any new developments, and in
2011, both companies spent more on buying up patents than any
research and design.

Google’s recent Open Patent
Non-Assertion (OPN) Pledge has been tentatively hailed as a
positive step in the right direction,  but thus far what they
have released has been a miniscule sliver of their total cache, and
amounts to a token effort at best- more PR than decisive precedent

With this ongoing stalemate, the prospects of
any kind of scaling down on software licensing in the next few
years seem pretty slim. On the flip-side, whilst New Zealand can’t
yet lay claim to any tech companies on the scale of Dell or Oracle
with this precedent setting move, a significant obstacle has been
cleared for emerging native talent to have a fair crack at becoming
one in the future – with nary a monster in sight.

Photo by StockMonkeys.com



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