New Zealand Rethinks Software Patents in Unpassed Bill

| Analysis

PatentsNew Zealand's parliament is considering a bill that rethinks software patents. The bill, while not explicitly banning software patents per se, instead declares software alone as not eligible for patent protection because there is no "inventive step" involved. In other words, since all software builds on prior software, and thus are not true inventions.

This is a far cry from headlines that have said that New Zealand has banned software patents or scrapped software patents. For one thing, the real story is about a new amendment to a bill under consideration. The bill hasn't been voted on, let alone signed into law.

For another thing, as noted by Christopher Mims at Quartz, New Zealand has international obligations to a global network of patent laws, regulations, and other agreements. Outright scrapping software patents honored in almost all other countries (led by the U.S.) would result in all manner of international brouhaha.

Of course, it remains to be seen if the bill is passed in its current form whether or not an international brouhaha will occur anyway. There is a lot of money vested in continuing with the status quo, even if there is a also a lot of money behind the forces of wanting to be free to rip off the inventions of other companies.

Tech giants like Apple, Microsoft, and even Google have invested major resources in patenting software processes and other investments. That's at the heart of Apple's battle against convicted copycat Samsung, a company that built a thriving business based on copying Apple's industrial design and the look and feel of iOS.

Writing for Forbes, Shaughnessy took a look at how the late Steve Jobs decided to use software and design patents (the later is not involved in New Zealand's bill) to protect Apple's interface efforts. Also, ignore the click-bait title, as it has little to do with what Mr. Shaughnessy wrote.

If other countries were to follow New Zealand's lead—and there is very much a movement to do away with software patents around the world—Apple's strategy would be turned on its head. Apple would likely have to return to copyrighting the "look and feel" of its OSes and software to protect them.

CopyrightThat strategy was at the heart of a lawsuit against Microsoft in the mid 1980s over Windows. Apple accused Microsoft of ripping off Mac OS in Windows, and while Apple lost that case, it wasn't because the courts ruled that Microsoft hadn't copied Mac OS.

This is widely, widely, widely misreported, so we'll emphasize the point. Apple lost that case because Microsoft successfully argued that it had a license to use the look and feel of Mac OS.

Apple had given Microsoft that license as part of the deal to sweet-talk then-Microsoft CEO Bill Gates to make software for the yet-to-be-released Mac. Apple said that license was for one version of Windows only, and it did not renew the license. Microsoft argued that the license was good in perpetuity, and the court agreed.

Nonetheless, Steve Jobs didn't want to rely on copyrights to protect OS X or iOS, instead turning to software and design patents. Perhaps to support the notion of software patents, Apple was among the first companies to license Amazon's famous "1-Click" software patent, a patent for the idea of being able to buy something online with one click.

At the same time, Apple has been the object of scores of patent infringement suits from patent trolls, or non practicing entities who don't make anything and try to get companies that do make things to license their patents, often through the courts. Apple has found that software patents both giveth and taketh away.

One more note: the New Zealand bill would allow software that is part of novel hardware to remain patentable.

Patent and Copyright images courtesy of Shutterstock.

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Comments

amergin

Best news I’ve heard in thirty years! I am a software developer and have been writing original software since 1981. Copyright is a valid argument, patents are EVIL. I dream of a world where one can freely and creatively design and write software just like artists and composers can paint or compose music. Thankfully no-one was allowed to patent red and no-one was allowed to patent a C#.

drllau

The problem with software patents is three-fold
- ambiguous claims (think trying to grab a class rather than instance)
- functional claiming (where the problem is patented and not the solution)
- statutory period of protection often longer than economic life

By given people within NZ the freedom to operate, it removes the deadweight social costs. However, patent regime still operates overseas so it is still possible for a non-practicing entity to hit up the customer.

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