Software patents are once again in the news in New Zealand as part of the long-awaited review of the Patents Act 1953. I don’t deal with the filing of patents in my work as a lawyer. Filing patents is a specialist field usually handled by specialist firms, with staff who have qualifications in relevant fields (electronics, engineering, chemistry, biochemistry, etc). But everyone in IT needs to be aware of the threats to innovation posed by software patents.
There has been so much written on this subject (though I have yet to read anything much in favour of them) that I will only add a few brief comments to the debate.
Patents have never been considered inherent rights of inventors. They must be applied for and granted by the state subject to specific terms. They are limited in scope, duration and availability. As was once taught in Form 5 History, the origin of patents in our legal system was the “monopolies” granted by the Kings and Queens of England. After various abuses and reforms (some by way of the English Civil War), the modern system of patents emerged. The economic rationale of granting limited patents was to encourage innovation by protecting the investment made in creating those innovations. By and large, this system worked well over several centuries and could, in fact, be shown to have encouraged many key innovations. In other words, the system worked.
Enter software patents. These can be shown to have the opposite effect (or at least have the likelihood of that) – discouraging innovation, or in some cases attempting to shut down innovation altogether. Software patents operate to limit the possible uses of an infinitely configurable device – the computer. Virtually all computer programs, except the most basic, low-level electrical systems, rely on implementing processes and functions to manipulate and configure a computer to produce a desired result. With software, there are no physical constraints as to how the functions and processes could be used, merged, integrated, or otherwise hacked. The result is an unfettered ability to innovate. This can include, where permitted, freely adapting or integrating someone else’s code to create an entirely new program (the basis of open source software).
Should this ability to innovate be blocked – possibly at a fundamental level – by the fact that someone else has patented the manipulation or configuration of a computer in a particular way? To do so is contrary to the current purpose and rationale of patent law. Software patents have a clear tendency to limit the innovations which may be derived from computers, for economic purposes. Patent law is not intended to protect commercially valuable intellectual property (although that is a valid economic effect). It is intended to encourage innovation. When the opposite result is occurring, it is time to either change the law to correct its operation (by banning software patents), or acknowledge the problem and redraft the law in light of a changed purpose of protecting commercially valuable intellectual property. The stated purpose of the Government’s review is:
“to ensure that [the New Zealand patent regime] continues to provide an appropriate balance between providing adequate incentives for innovation and technology transfer while ensuring that the interests of the public and the interests of Maori in their traditional knowledge are protected.”
Software patents are an international issue. Successive Governments here and overseas make endless statements about “embracing the digital age” to acheive a “high value economy”. Whether the software patent problem is fixed – and soon – will be an early test of their commitment to that cause.