NZOSS expects powerful opposition to patent reform

Two law firms challenge Commerce Select Committee's recommendation to exclude software from patent protection

The New Zealand Open Source Society is expecting powerful interests to bring pressure on the government to reverse plans to exclude software from patent protection in New Zealand.

In a post on the NZOSS website yesterday, vice president Peter Harrison applauded the Commerce Select Committee's recommendation to exclude software from patent protection and responded to critics of the proposal.

"In all honesty it was very unexpected that we would be able to change the direction of this legislation. That we have put forward a argument that was sufficiently compelling means our hard work over the last several years has indeed born fruit," Harrison says.

"Of course we are not naive. This is certainly not the end of the line; the Government must adopt the report of the Commerce Committee and pass the legislation. We sincerely hope that the Government will adopt the careful deliberations of the Commerce Committee and carry forward the legislation as proposed by the Commerce Committee. There are many powerful interests who will be very upset by this decision, and no doubt they will bring every influence they have to bear on changing this decision."

Harrison then responds to two law firms who have been critical of patent exclusion on their websites.

Ken Moon, of intellectual property specialist AJ Park, criticised the recommendation on a number of grounds, saying the requirements for inventiveness under patent law are the same as for any other invention. He also noted issues with embedded software and that New Zealand's position appears to be diverging from Australia's, despite attempts to harmonise business between the two countries.

A trio of Baldwins solicitors also weighed in against the proposal.

"It is not clear why the Committee gave the open source Community submissions such weight," they write. "To argue that software is unpatentable because it builds on existing software seems unusual given nearly every invention builds on what others did before.  As many innovators realise, one object of the patent system is to promote publishing of inventions.   Then others have the opportunity to learn and develop from those inventions and improve our standard of living."  

In response, Harrison says many members who also develop proprietary software support the exclusion and patents are harmful to all software development houses.

"The ways in which software patents can stifle innovation was given specific treatment in our submission. Our first example was a comparison to books which no doubt can be creative and innovative, but are not covered in patent law. Software is a form of creative expression in almost every way analogous to writing a book. Our second example was a description of how patents have been used to reinforce monopolies and protect the revenue streams of large multinationals, but have failed to provide revenue to New Zealand software companies," he writes.

On the divergence from Australia, Harrison points out that Europe has taken the same stance as New Zealand.

"Therefore we are in fact implementing a patent approach that is well supported by some of our largest trading partners. It is indeed unfortunate that Australia implemented changes to it's patent law as a consequence of the US Free Trade Agreement, as it has seen no benefit from that agreement.

"It would tend to indicate that changing our patent law to benefit US multinationals should at least wait until we have a solid Free Trade Agreement with the US Administration that delivers something of real bebefit to us, such as to cut subsidies to its dairy farmers and allow us to compete on a equal basis. There is little benefit to sacrificing any meager leverage we may have simply to get to the negotiation table."