Monday, July 25, 2011

Patents on the tellie

It’s not often that patents make an appearance on national television.  As a patent practitioner with 17 years experience I am delighted that my chosen profession is becoming so sexy.

I appreciate that readers outside New Zealand may not be able to access the link.  So I thought I would summarise the main points raised in the most recent episode of The Court Report.

Matt Sumpter of law firm Chapman Tripp made some good points during his appearance in Chapter 3 on the show.  He explained the difference between patents and copyright(s).  He acknowledged that our New Zealand Patents Act is out of date and that it has been under review for over 10 years.

He referred to the proposal to exclude computer programs from patentability as “mad”.  The proposal will put us out of step with our major trading partners such as Australia, the United States and Europe.  A significant part of the software industry is very supportive of patents remaining available in this industry.

Software is everywhere says Sumpter.  Software makes your car run in the rain.  Software makes the telephone network run.  Software drives navigation systems.  It makes hearing aids work.  It makes dishwashers work.  It does all sorts of things.  People who write such software deserve a return on investment.

Software is no different from other fields of inventions.  There is no principled basis for distinguishing between software and any other inventive endeavour.

Open source enthusiast Don Christie agreed that mechanical objects that include software should be patentable.

Where they differ is Christie’s view that software is simply mathematical algorithms.  Software development, says Christie, is just like writing a book or creating music.  All it involves is typing lines of mathematical algorithms.

I’m not sure I agree with Christie on this last point.  Airways Corporation of New Zealand Limited for example is on record as saying “Many of the systems we develop require five or more years of considerable research and development and an investment which runs into the millions of dollars to see the systems through from initial concept to a commercial product … Patent protection is important to enable us to realise the benefits of our investment, both in New Zealand and overseas.”


  1. Hi Matt

    Computer programs are mathematical algorithms. Any first year CS grad should be able to tell you that. Check out the works of Alonzo Church and most obviously, Alan Turing.

    As for Airways, they will be far better protected on their home turf if their much richer, more aggressive competition is not able to register software patents in New Zealand.

  2. Software development *is* like writing book or creating music. Unless you are a software developer, your disagreement is meaningless.

    Most software developers don't want software patents. It's only giant incumbents who want them and that want to stifle the innovation that may lead to them becoming obsolete... and the lawyers that want to continue billing them.

    Where did you get the idea that a "significant part" of the industry is for software patents? Who did you ask exactly?

    Nice one wrapping up all of Europe as having software patents. This is blatantly untrue.

  3. Hi Joel,

    Thanks for your views. You raise quite a few issues. Let’s deal first with your comment “Nice one wrapping up all of Europe as having software patents. This is blatantly untrue”.

    Back in 2002 the Ministry of Economic Development (MED) released a discussion paper titled “Review of the Patents Act 1953:
    Boundaries to Patentability”. You can view the whole paper at the link

    On page 47 of the paper, MED discussed Article 52(2) of the European Patent Convention. The European Patent Office “held that the exclusion from patentability of computer programs as such in Article 52(2) does not prevent the patenting of computer-related inventions.” On page 48 the MED concludes “[t]his means that computer software is now patentable in the European Community, provided the software is directed to carrying out a ‘technical process’.”

    A European patent, once granted, is able to be validated in European countries that are member states including France, Germany and the United Kingdom. A full list is available at the link

    How is MED’s advice on Europe “blatantly untrue?”

  4. Don,

    Thanks for your comments.

    Your view that software development is just like writing a book or creating music is not shared by Airways Corporation. They see software development as being more than just typing lines of what you refer to as mathematical algorithms. The systems Airways develop require considerable research and investment.

    You also make the point that Airways will be better protected in New Zealand if others are not able to register software patents in New Zealand. Once again, Airways have a different view. They say that “[p]atent protection is important to enable us to realise the benefits of our investment, both in New Zealand and overseas”.

    I guess you and Airways are just going to have to agree to disagree on that one.

    By the way, are you still on the board of the New Zealand Open Source Society (NZOSS)? How many NZ-resident individuals are financial members of the NZOSS? How many NZ-owned corporates?

  5. Personally, some patent isn't going to stop me writing a computer program any more than someone patenting the idea of a thriller is going to stop me writing a book with a thriller plot. Most software patents are really that stupidly broad, I've yet to see one that isn't.

    I mean really, "a technical process"? That's an extremely ambiguous statement. Arguably I'm developing technical processes everyday (I develop cutting edge machine learning algorithms in Hong Kong).

    But hell, if I ever run into trouble, I'll just do some mathematical transformation on the code and then claim it's a NEW TECHNICAL PROCESS.

    Sorry, stupid law will never get me obeying it. I've too much self respect and hope for the future of humanity.

  6. Joel,

    Patents are territorial. A New Zealand patent (which is what we are talking about here) does not extend to Hong Kong. If you are writing code to implement machine learning algorithms in Hong Kong, then you are unaffected by the New Zealand patent system.

    In fact, I’m not aware of a single instance within New Zealand of a patentee suing for patent infringement of a New Zealand patent involving a computer-implemented invention. This is despite patents of this nature being available for almost two decades in New Zealand.

    I still don’t see how MED’s advice on Europe is “blatantly untrue”.

    Once again, thanks for your comments.


Related Posts Plugin for WordPress, Blogger...