Software patent ban could damage investment
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Any exclusion of software from the New Zealand patents regime will “suck the lifeblood” out of the New Zealand software development industry, says Chris Auld, director of strategy and innovation at Microsoft-specialist developer Intergen.
One major effect, he says, would be to discourage venture capitalists from investing in the industry. Investors would be less willing to sink money into a project whose result will not have adequate protection against imitation.
“This will make it hard for ICT to remain competitive for venture capital alongside other industries that can still get patents for the products,” he says.
See also: Orion Health backs moves to block patents
Power backs deletion of software patents
NZOSS expects powerful opposition to patent reform
Thumbs down for software patents in New Zealand
Loss of patent rights, as flagged as favoured by Parliament’s Commerce Select Committee last month, will also discourage people with keen minds from entering software development, Auld predicts. Instead they will apply their idea-generating capability to other fields, such as biotechnology or agricultural technology, worsening ICT’s already serious staff shortage.
“Maybe that [diversion of bright minds into other fields] is government’s intention,” he says; “I don’t know, I find this move hard to understand.
However, Open Source Society president Don Christie says Auld’s is a “very tired old argument that has been discredited”.
“It was, of course, made to the select committee who were obviously unconvinced,” he says.
“All I need to do is point to the explosive growth of the internet, which was based on the idea of openness and uncapturability. In other words, no patents. Indeed, the heydays of the computer software industry have all occurred during periods where patents were not available to software developers.”
Christie says many New Zealand companies now have to sign contracts with huge liability indemnity clauses. These generally indemnify the client against IP infringements and have changed the risk profile for small ICT businesses.
“Essentially they are taking on risks that are ruinous and they have very little real hope of being able to cover those liabilities, even when they increase insurance premiums up the wazoo,” Christie says.
A former lawyer, Auld is not arguing that patents are perfect. The area has been bedevilled with cases of patents granted on reasonably obvious developments, obstructing further innovation.
But that doesn’t reflect a weakness in patent law, he says; rather an under-resourcing of this country’s Intellectual Property Office, charged with examining patent applications.
This is partly a consequence of the software industry’s “meteoric growth”, he says.
“We need better prior-art searches,” Auld says, meaning searches for previous applications of an idea claimed as novel; existence of demonstrable prior art means a patent will not be granted. This would minimise the problem of trivial and obstructive patents.
Alternative ways of protecting software, such as copyright and licensing, don’t offer as much protection as a patent, Auld says. Copyright only protects the particular expression of the idea – the program code and documentation – not the idea itself.
The Commerce Select Committee seems to have listened particularly to the open source lobby, he says, resulting in a biased view of the question. He did not, however, make a submission to the committee himself. “I and people like me are not impassioned, like the open source people. They treat it like a religion and they seem to be able to afford the time to front up and speak at Parliament. I’m just concerned to roll my sleeves up and get on with producing software.
“I don’t know what our [supporters of software patents’] next move should be,” he says.
— Additional reporting by Rob O'Neill
.The free press is the omnipresent eye of the spirit of the people
, the embodied confidence of a people in itself
the articulate bond that ties the individual to the state and the world,
the incorporated culture which trnsfigures material struggles into intellectual struggles
. It is the ruthless confession of a people to itself
and it is well known that the power of confession is redeeming
So free us from people like Auld who want to restrict and dominate
Posted by Jonathan Clark at 20:58:00 on April 20, 2010
Sorry, I missed that. My surprise that there are people other than patent lawyers who support software patents was based on a false premise.
Posted by Michael Kay at 23:36:00 on April 15, 2010
Posted by Michael Kay at 23:15:38 on April 15, 2010
A piece of software is typically covered by hundreds of patents, making the probability of legal certainty that you can sell your work without any risk virtually null.
Posted by invest at 20:45:46 on April 15, 2010
The reason I do these things is because I have a duty to do so. Every moral man has a responsibility to their family, their community and their country. I am a patriot. I care deeply about our future. And if that means a little personal sacrifice; and I do mean just a little; then it is a price I will pay gladly.
Mr Auld says that he is too busy writing software to appear before the Committee. What does he think my day job is? I have been writing software for twenty years. I live and breath software; it is what I love to do. And it is for this reason that when I see a system restrict the right of myself and other countrymen to do what we love we oppose it. It is our duty to do so. If I failed to do so I would fail in my moral responsibilities.
Posted by Peter Harrison at 16:23:21 on April 15, 2010
Posted by Darran at 21:25:23 on April 20, 2010
It's rich for you to accuse anyone involved with open source of bias, when you clearly have your own agenda. Its clear that software patents are problematic for proprietary developers as well as open source. Much of the analysis indicates NZ developers, as compared to large software multinationals, will be better off without software patents.
Posted by Jonathan Hunt at 16:14:51 on April 15, 2010
To those reading this article, it's important that you recognise that the NZICT association does not represent most kiwi IT businesses. I can tell you, Brett, that you're certainly not representing my business' interests. Your organisational constitution ensures that your "Tier One" and a small proportion of your Tier Two member organisations dictate your policy and your voice.
90+% of NZ (i.e. non-multinational) IT businesses would never be able to afford membership above General Member status, making it fiscally impossible for your organisation to *actually* represent the New Zealand IT industry interests over those of multinationals who do business in NZ. Perhaps it's best if you accept this, and that our government takes your advice with a major grain of salt.
For those wanting to confirm this for themselves, see here: http://www.ict.org.nz/wp-content/uploads/2009/02/nzict-rules-for-15-dec1.pdf
The NZCS is much closer to representing NZ IT professionals than NZICT, and 80% of their members are for the software patent exclusion...
Posted by Dave Lane at 15:57:24 on April 15, 2010
Posted by Dave Lane at 16:10:04 on April 15, 2010
In fact, we have about three centuries' accumulation of empirical evidence showing that patents as a whole do not encourage innovation, they tend to strangle it. See Boldrin & Levine, "Against Intellectual Monopoly" http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm
Posted by Lawrence D'Oliveiro at 11:26:21 on April 15, 2010