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New Zealand softens software patent ban

Amendment welcomed by vendors, laywers

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New Zealand has passed legislation which partially forbids the granting of software patents – but has come under trenchant criticism by the NZ Open Source Society for abandoning local developers.

Originally, the country’s new Patent Bill (which passed parliament on August 29) had been expected to ban software patents outright. That intention stands: a patent application for a computer program won’t be granted. However, New Zealand’s commerce minister Crag Foss amended the bill so that software “as such” can’t be patented, but inventions that include software can be.

For example, an office suite isn’t eligible for a patent, but a patent for an embedded system would cover the software inside as well as the hardware.

NZOSS says the revision throws local developers “under a bus”, because it creates a “legal loophole” which has “made a mockery [of] European Union patent legislation’s intent to block software patents”.

According to National Business Review the change has been welcomed by patent lawyers – not necessarily a good sign – as holding out against the free software movement because FOSS “robs inventors of the incentive to innovate and create new material if others can simply free-ride on that investment”.

Fairfax notes that one of New Zealand’s most important international brands, whitegoods manufacturer Fisher and Pykel, is as much an embedded software company as a hardware supplier, and would have been presumably concerned at the mooted ban on all software in patents.

However, there’s no particular record of Fisher and Pykel lobbying the New Zealand government – unlike Microsoft, IBM and the industry association NZICT, whose confabs with the Ministry of Economic Development are documented here.

It’s likely that the USTR, which this year criticized New Zealand for departing “from patent eligibility standards in other developed countries” will be sharpening its rhetoric next year. ®

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