Two-word change to Patents Bill rescues software inventors

A last-minute amendment to the Patents Bill will be welcomed by software developers, bringing New Zealand in line with international markets.

LATEST: Software industry split as Foss drops Patents Bill bombshell

Patentability of software has been the final sticking point after a select committee proposed to exclude software patents from the bill.

The suggestion was strongly opposed by software companies as it would put New Zealand out of step with global software firms – particularly the European market.

Whether the government was going to bend on this point was one of the most interesting points to watch since the bill, stalled in Parliament since 2010, was resurrected earlier this month.

Intellectual property lawyers at Chapman Tripp say the two-word insertion has made the difference between good legislation and bad.

And it would bring New Zealand into line with international norms.

“The move is in line with the European approach … although we would have preferred that the ban was removed from the Bill altogether in keeping with Australian and US practice,” Chapman Tripp partners Matt Sumpter and Jack Hodder SC write in the firm’s ‘Brief Counsel’ note.

The government has made a small but important decision in the interests of inventors, the New Zealand economy and New Zealand’s obligations under international law.

“It did so despite staunch lobbying from the 'free and open source' software movement who reckon that software should be, well, free. 

"An enduring difficulty with 'free software' is that it robs inventors of the incentive to innovate and create new material if others can simply free-ride on that investment. “

Intellectual property lawyers welcomed the bill’s resurrection this month, when it was boosted to the top of the pile of tasks for the government to complete as part of its Building Innovation report.

That put patent law reform on track for the end of the year, expected to make New Zealand a more serious player in the intellectual property field.

Baldwins Intellectual Property partner Rosemary Wallis says New Zealand’s ancient patent legislation, based on the UK Patents Act 1949 (which the UK abandoned in 1977), has put us well behind our trading partners.

The new laws are likely to make it harder for a business to get a patent, but the quality will be better and New Zealand patents will be less likely to be challenged internationally.


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Wow, the gall of this collection of self-interested IP lawyers is breathtaking. As a software developer, their position on the legislation is utterly irrelevant.. They're ethically "flexible", so of course the legislation that creates the most work for them is obviously the 'best outcome". Why, NBR, have you not included the view point of actual software developers in this article? Remember, the people who are meant to be inspired to create by software patents? The *only* reason software patents exist?


It's because this is an almost word-for-word regurgitation of Chapman Tripp's press release, devoid of reality. We expect better from the NBR.


Huh? You should really pay attention rather than regurgitating Chapman Tripp's press release.

The software industry in New Zealand broadly and strongly supported the removal of patentability of software. This includes the country's two largest exporters plus more than 80% of developers.

Patent lawyers like Chapman Tripp are in favour of software patents. Fees, glorious fees. Real software businesses are not - they stifle innovation and destroy value.

Intellectual property is important and in the case of software, Copyright fits the bill. Imagine is someone patented "business newspaper" then sued the NBR. That's the reality software companies are coming across every day.

The software industry is NOT in favour of software patents.


Software Inventors don't like patents as it stops them from freely developing their own ideas for fear of encroaching on other people's patents.
Software inventors don't like patents as they cost a lot of money.
If you get granted a patent you have to be prepared to defend it, which is outside the resources available to most small independent software inventors.
Most software patents are frivolous.
Software patents are generated by large companies so that they can build up a war chest of patents to use in times of court battles.
Software patents are used by large multinational companies to do battle with their competitors so that they can increase their market share.
Software patents are used to limit competition.
In the end consumers suffer from the use of software patents.
Patents should be kept for real inventions. Most genuine software ideas were thought of in the early days of computing, many many decades ago(ie during the 1950's). If these ideas had been patented we would not have the computer industry that we have today.


Wasn't Apple's recent case against Samsung mostly for software IP infringements? eg: swipping your fingers on a touchscreen! I really dislike the state of the USA Patent system, and hope we don't get dragged into it.


No creative New Zealand businesses have the large purse required to defend their software patents against multi-national software companies - even assuming they can afford the patent protection in the first place.

Most IP lawyers who act for NZ based businesses rather than the NZ branch of large multi-national corporations (who hold patents purely for strategic reasons, stifling rather than promoting innovation) advise their clients to put their precious capital into developing excellent product, branding strongly and getting first to market.

Patents can be useful to protect innovation in areas like specialized machinery for farming, but in the software industry they largely only make money for those who collect them to sell to the highest bidder for strategic reasons.

Shaking my head that the advice from officials and all in the New Zealand industry is to be ignored. Perhaps because the TPPA will require this anyway?


I'm a software developer at a company selling software overseas, and this is bad news for innovators and inventors. software patents do not function as a mechanism for protecting IP, they're a system for exacting revenue.


This column is drivel. Software patents give zero value and create an absolute minefield for innovative startups which virtually all NZ software companies will be. That has nothing to do with Open Source software.

Chapman Tripp should know better since they acted for us when we sold Marshal Software. If we had to figure out whether our package violated any software patents anywhere in the world we would have been bankrupt and too late to market before we had started.


So if the international norm is to ignore software professionals, wouldn't it be a better idea to listen to them, ban software patents, and enjoy the new prosperity that tech firms could bring to New Zealand?

Why do we want to be like everyone else, when instead we could attract the next Google, Apple, or the like to our own country based on our software patent stance?


Please don't presume to speak for me Georgina.

I'm one professional software developer that does not "welcome" the patentability of software and I'd be surprised if I was in the minority in this view.

Intellectual property is indeed important in the professional software industry but it is well protected by copyright law and that's all I need thanks!

The small New Zealand development company is now going to start getting mugged by the big international boys and their pit bull lawyers.

Even if we pay the protection money they will demand we will still be at the mercy of random patent trolls.

When we investigate trying to use the new laws to fight back, to get our own patents and to bring our own cases, we'll find the costs involved are not worth it - we'll pay for others "ideas" (even if we had them ourselves independently) but will not be able to force others to pay for our own "ideas".

I hope the government got a good deal in the TPPA for other New Zealand industries in exchange for this. Software development costs here will be going up and most of the extra money will be flowing off shore (the rest to companies like Chapman Tripp).


Yes, these people are so ignorant it hurts. We were exporting our software to 65 countries before we sold the company. Just imagine the cost of checking every software patent in every country to make sure we hadn't violated it somehow.

And have these clowns ever even read a patent? The language is always so impossibly and legalistically general and all-encompassing that you know it is going to take a court case to determine its scope. The system is mad beyond belief - unless you factor in corrupt self-interest by the complicit participants.


What a load of bollocks.


Anyone ever heard of this thing called TRIPS that NZ is a party to? There endeth all counter-arguments, surely.


TRIPS is a red herring. Crown advise to the Select Committee was that the software exclusion did *not* breach TRIPS.


Hmmm... Funny how the rest of the world thought that it did...


I'm a software developer (and exporter of software services). I'm dismayed by the government's U-turn on software patents. The comments from Chapmann Tripp, regurgitated here as news, are laughable. There is plenty of innovation in the Free & Open Source Software (FOSS) world. Just look at the 3.5million+ repositories on for examples. I guess there's no innovation in web browsers either given that Firefox, Chrome and Safari are all based on open source.

It's not just open source developers who don't want patents. Major New Zealand development houses such as Orion Health and 80% of IITP (formerly NZ Computer Society) members don't want them in NZ either.


What about a bit of background so anyone new to this can understand what the two words are, etc? Are they "free software"? This is not an article in as much as lazy journalism. Copy-Paste media release. Yawn.


783 and counting developers and users of software have indicated their opposition to software being patentable. They are all disgusted at the ministers last minute sneaky SOP to add the term 'as such'.

Take that Chapman Tripp and your patent lawyer mates. Who do you represent again??


Most software developers are against software patents, recognising that the "international norm" is to have a patent system which, through its application to software, stifles innovation, kills off innovative small companies, forces entrepreneurs to sell out to mega-corps at discount prices, and rewards predatory & immoral practices.

So "welcome" this change? Far from it. It's a disgrace that the government are essentially selling out to lobbying by US corporate interests.


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