Should software be patentable?

Over the past few months, the New Zealand ICT community has been debating the issue of patents.

Initially, a government Select Committee of MPs decided software was not patentable as it considered a new Patent Act. The New Zealand Computer Society said patents stifle innovation and creativity. However, there has been a u-turn, apparently following lobbying from the big vendors like Microsoft and IBM.

The latest government thinking is that patents that serve a "technical purpose" such as operating machinery should be allowable, while those that just process information should not.

There has certainly been much debate within the New Zealand ICT community — a debate that still continues.

As for me, I am not too sure either way, though the latest thinking seems a fair compromise. Certainly we need patents to protect the intellectual property of people that create innovations. They need to benefit from the fruits of their labour.

In a recent case, Microsoft pointed out that it spends millions every year developing new software. It is only fair and proper that it gets a return on that investment. If it gets no return, it would not bother investing that money and developing new solutions that benefit us all.

However, we also see that Microsoft can use patent law to suppress innovation by making its patents too overarching, affecting things it shouldn't.

It seems to me that the concept of certain generic sorts of software patents could well be made redundant thanks to the growth of open source, while remaining for specialist applications that have a technical purpose.

I expect there will be much debate still to come, with some sort of compromise like the one I've just put forward sure to feature in the future.