New Zealand’s Anti-Software Patent Law

The hysteria against software patents continues around the globe, threatening to hinder the most important aspects of the knowledge economy in favor of clinging to old industrial age paradigms. The real problem with software patents has been the large number of poor quality patents issued by the US Patent and Trademark Office due to bad searches, poor training, and poor quality examination in general. These problems are not solved by banning certain classes of patents, but by improving the Office and correcting the huge siphoning of funds from USPTO coffers that Congress has done to fund their endless spending sprees. But in backlash to the few outrageous examples of overly broad patents that have been issued, ill-informed mobs have been stirred up to condemn software patents, business method patents, and sometimes patents in general, not recognizing that intellectual property rights are essential for providing the incentives required for inventors to make the sacrifices and investments required to bring inventions to life.

A recent development comes from New Zealand, where anti-patent zeal has resulted in a law that outright bans computer-related patents altogether, or so it seems. Here is the text of the law:

(1) A computer program is not an invention and not a manner of manufacture
for the purposes of this Act.

(2) Subsection (1) prevents anything from being an invention or a manner of
manufacture for the purposes of this Act only to the extent that a claim in
a patent or an application relates to a computer program as such.

(3) 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.

In this, the Knowledge Economy, where innovation increasingly depends on how information and data are applied, managed, and created, eradicating computer-related patents is almost as logical as banning patents on anything using electricity. It is an expression of a Luddite mentality that will slow progress in some of the most promising areas of the economy.

Greg Aharonian of the Internet Patent News Service, a keen observer of patent trends and government follies in the IP world, in email to his subscribers sent Aug. 29, 2013, readily pointed out the hopeless defects in this law, arguing that it is “meaningless without a definition of ‘computer’ and ‘computer program.'” He illustrates this with some examples:

Take a computer program written in C, with a listing of the C source code. Clearly that is a computer program. Now, run the C code through a hardware/software co-design tool and create an Application Specific Integrated Circuit that performs the C code. Is the ASIC a computer program? Of course not, it is hardware, a chip, not programmable … but a computer program to anyone who isn’t brain dead.

Or, convert the C code into a burn pattern for a Field Programmable Gate Array? Is this FPGA a computer program? Well, it is pure hardware, a chip, but it is more programmable like a microprocessor executive now-banned computer programs. Computer program or hardware? Finally, using the same co-design tool, just compile the C code and distribute it on a CDROM for execution on a PC or Mac. Clearly that is a computer program. But its all the same thing. It is the same algorithm in different embodiments.

Yet none of these subtleties are reflected in the law for lack of a definition of “computer” and “computer program”. This is the same patent law terrorism seen in not defining “abstract”, “obvious”, and “as such”.

This law, like many of the utterances of justices in the U.S., reflects profound ignorance about the digital world and the nature of computers, computer chips, software, hardware, smart appliances, automation, and electronic technology in general. Reacting to backlash over low quality patents in this manner does nothing to address the quality problems and only adds to the expense and difficulty for those seeking to protect their inventions. It’s another recipe for innovation fatigue.

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