The Pirate Party of New Zealand congratulates MPs on the intent to limit the patenting of computer software in the new Patents Act, which passed its third reading in Parliament on 27 August, and will soon become law. While the original, clear wording that “a computer program is not an invention” is still modified by the weasel words “as such”, a series of clauses have been added to clarify exactly what “as such” actually means; “A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.” The example given is a new technique for getting clothes clear, involving a new design for a washing machine which could include software aspects.
However, while lobby groups against software patents are treating this as a victory, the Pirates are concerned that NZ Institute of Patent Attorneys are doing the same, saying in their 2 September press release:
“When the 1953 Act was passed, there were less than 100 computers in the world, and the transistor had just been conceived…. the new Act will help patent attorneys support New Zealand businesses to be more innovative and to take those innovations to the world.”
Pirate Party President Kirk Twist says:
“When patent attorneys start rubbing their hands in glee at the new Act, after having objected loudly to the original wording, we have to take a closer look. Will the new Act will really protect small companies and open source communities who can’t afford legal defence from the use of patents to extract settlement money from them, or to block their work in favour of a larger competitor?”
Twist points out that patents are already being used in attempts to control new styles of general purpose computer, like tablets and hand-helds (“smartphones”):
“The question is, if this bill had been passed in the USA before the invention of the graphical user interface, could Xerox have claimed that the software implementation was part of the machinery of a new screen, and used the “as such” exception to patent it? If so, how could the public possibly benefit from developers having to pay royalties to Xerox every time they offered users a new kind of graphical interface for a computer screen?”
The Pirates also worry that the “as such” exception will be an incentive for further moves away from general purpose computers, which can run any kind of software, and towards computerized appliances which are limited to the handful of functions intended by their manufacturers. A patent on such appliances, including their software, would not be a patent on software “as such”.