Patently obvious?

T his month I’m breaking from regular programming to talk about a current topic that’s significantly important to the ICT landscape but that hasn’t been picked up by many: software patents.Patents date as far back to the 14th century, when the sovereign of the day would use them to grant exclusive rights for the manufacturer or exploitation of something in exchange for sharing it with the king. Back then things didn’t have to be an invention to have a patent. Discoveries (such as common salt) were often patented, or they were given as rewards.Gradually the patent system was refined, starting with James I of England throwing out all patents and decreeing that they needed an “inventive step”; it was no longer sufficient to just discover salt or be awarded it. Over time several other criteria formed, such as mathematical algorithms being excluded, because philosophically you cannot invent an algorithm. Copyright was created in 1709 to protect the authors of original work. In the software sense, copyright quite rightly protects against a competitor wantonly copying your product.So what’s happening overseas? Software patents in overseas jurisdictions have been the subject of much debate and many problems. In the US and elsewhere, huge companies thrive by gaining patents for often dubious and obvious things, then setting about threatening to sue other software companies for alleged infringement unless they pay out. Many larger companies also use patents as a tool to protect their position by threatening up-and-comers, and as weaponry against other competitors. Many of these claims are dubious at best, but can be catastrophic for a small software house lacking the resources to defend its position.Hence, rather than protecting innovation, which was the original intention of patents, they now pose a genuine and significant risk to innovation for many software companies, as innovating increases the risk that someone, somewhere has patented something to do with what you’ve just invented and may turn around and pursue you legally.The actual patentability of software is itself another significant issue. One could define software as “an algorithmic implementation of a concept”. If we accept that definition, then it should be excluded from patentability by default. That’s all well and good, but why am I talking about software patents and copyright? Well, an interesting and relatively unexpected thing happened recently – the Commerce Select Committee, which has spent several years looking at revising the Patents Act, recommended to Parliament that the patentability of software be scrapped, and the Minister of Commerce agreed.That’s not to say that software cannot be protected; however, many are of the view that copyright provides sufficient, and far more appropriate, protection, just like with books, movies, music, and other forms of original work. It would be a nightmare if the concepts underpinning any of these were patentable, just like the nightmare that patentability of software has become.Given the above issues (and many others) you’d think it would be a no-brainer to exclude software from patentability, but the fact is, America loves patents. Most of the large ICT multinationals strongly support them, given their policy is defined overseas, and you can bet the government is under pressure from lobbyists behind closed doors to keep software patentability in place.Hence it’s absolutely refreshing to see MPs across all parties unanimously recommend that our law reflects what many see as the best interests of New Zealand's innovative software companies. Call me a cynic, but that came as quite a surprise, and we’ll be watching with interest to see if it changes.