A Different Approach to Software Patents

September 16, 2013

NZ PatentRecently, New Zealand enacted legislation addressing the issue of patents for computer programs.  The New Zealand approach severely limits the scope of software patents.  It provides a legislative strategy that is likely to serve as a model for other nations and one which should be adopted by the United States, as well.

The New Zealand law specifically indicates that computer programs are not “inventions” for the purposes of patent law.  This means that they are not eligible in their own right for patent protection.

The law does, however, provide some patent protection for computer programs.  To the extent that those programs are integrated into a patentable process (e.g., software that operates a patentable manufacturing process), the computer programs can be covered by the overall patent for the process.

Similarly, computer programs that are embedded into devices can be included within the scope of the patent for the device.  In this way, software that enables the operations of a patentable device and is made a part of that device can be protected by the patent for the device.

New Zealand is not the first country to impose limitations on patents for computer software.  Other nations have implemented similar limits.  Many countries have interpreted their existing patent law to exclude computer programs.

The New Zealand legislation is important, however, as it provides an approach to computer software patents that is more clear and specific than the systems implemented in other countries.  New Zealand has implemented a controlled approach to software patents which can serve as a helpful model for other nations.

Many computer industry observers are concerned that the dramatically increasing number of patents for computer programs can have an adverse effect on the future development and use of computer software.  They contend that proliferation of patents will make it increasingly difficult for software developers and users to offer new, innovative products.

The legislation crafted by New Zealand provides a clear expression of an effective and appropriate balance between the proprietary goals of software companies and the need to preserve the innovative process by preventing the potentially chilling effects of overly   broad software patent coverage.  The United States should follow New Zealand’s lead on this subject.  In many ways the approach codified by New Zealand mirrors the way in which U.S. patent law was interpreted during the early days of the computer software industry.

As computers emerged as a powerful tool for use in many different applications, it was at first unclear how computer programs should be treated under U.S. patent law.   Many of the first U.S. patents that addressed computer programs were patents for existing processes and applications that were improved or expanded through incorporation of computer programs.

By adopting computer software patent legislation similar to that implemented in New Zealand, the United States would not be embracing a radical new patent strategy.  Instead, it would simply be returning to an approach to software patents paralleling the one applied in this country during the early days of the computer industry.