Chapman Tripp urges re-think on software patents
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Law may contravene existing international agreements
By Stephen Bell | Wellington | Tuesday, 29 March, 2011 | 6 Comments
Champions of software patents are urging Parliament to revisit the ban on patenting “computer programs” in the presently drafted amendments to the Patents Act 1953. They suggest the law as it stands will be unclear and will possibly contravene existing international agreements.
A note by lawyers at Chapman Tripp, in the firm’s Brief Counsel blog last week, suggests “the government has tied itself in knots trying to ban computer programs from the patent regime. It has now sought help from the Intellectual Property Office – but they are struggling to untangle the mess.”
Chapman Tripp and other sources suggest excluding software from patents will contravene the TRIPS (Trade Related Aspects of Intellectual Property) agreement. Article 27(1) of TRIPS says World Trade Organisation members must make patents available for inventions “without discrimination as to… the field of technology.” If New Zealand is judged to have violated that clause there could be serious trade consequences, Chapman Tripp says.
MED intellectual property analyst Warren Hassett says most countries provide for some restriction on technology patents and the WTO has not called any of them to account for it in light of Article 27. The topic of software patent was not specifically raised in the negotiations that led to TRIPS, he adds. “We are not convinced that exclusion [of software from patent] is necessarily in contravention of the TRIPS agreement.”
The New Zealand amendment bill has a one-line exclusion, reading simply “a computer program is not a patentable invention”; but a set of “guidelines” issued by the Intellectual Property Office suggests many inventions partly implemented in software need not “fall solely within the excluded area” and will therefore still be patentable.
Comments
It's the lawyers... not the software developers
It's lawyers, not software developers, who want software patents. How else can one explain the fact that this plea was made by a law firm, not a software developer?
For anyone reading this article and not getting what all the fuss is about, consider this introduction to the software patents situation. I don't for a second claim it's unbiased, but I do claim it's accurate.
Posted by Dave Lane at 16:01:59 on March 31, 2011
For anyone reading this article and not getting what all the fuss is about, consider this introduction to the software patents situation. I don't for a second claim it's unbiased, but I do claim it's accurate.
Posted by Dave Lane at 16:01:59 on March 31, 2011
Disclosure
I would be perfectly willing to listen to Chapman Tripp provided they give full disclosure on which of their clients are affected by this and how.
Some background.
I'm a Canadian. We recently went through a dogfight over a copyright bill, Bill C-32 which was based on the failed and outdated WIPO 1995 Internet Copyright Treaties. Bill C-32 died on the order paper when Parliament was dissolved for an election over other issues.
During the entire run up to the tabling of Bill C-32 we had a series of lawyers writing op-ed pieces for the major newspapers. These lawyers wrote articles all claiming that we needed to bring our copyright laws into the 21st century, that we needed to ratify WIPO, that we needed to match the U.S. DMCA, and laws enacted by out other major trading partners, that Canada's copyright laws were an international disgrace.
What the lawyers did not disclose, and the newspapers curiously did not bother to ascertain, was that the lawyers in question, all had ties to industries that were backing Bill C-32. Take Barry Sookman for example. He had several opinion pieces published, and was interviewed numerous times. Not once was he identified as a registered lobbyist for the Canadian Recording Industry Association! This information is freely available on the Industry Canada website. Or take James Gannon. James works for the same firm as Barry, in the same city, and on some of the same clients. James too has been interviewed numerous times, and never once did the newspaper doing the interview ask James about his industry connections. He might have been forced to answer with, "I can't tell you," but that answer would have been answer enough alone, because if there were no connection he would have said "None."
So when a lawyer or law firm starts spouting off about something, start asking them pointed questions. Start asking the newspaper pointed questions too about why they didn't ask the questions. After all, if they didn't, they didn't do their job.
Wayne
Posted by Wayne Borean at 1:43:10 on March 30, 2011
I would be perfectly willing to listen to Chapman Tripp provided they give full disclosure on which of their clients are affected by this and how.
Some background.
I'm a Canadian. We recently went through a dogfight over a copyright bill, Bill C-32 which was based on the failed and outdated WIPO 1995 Internet Copyright Treaties. Bill C-32 died on the order paper when Parliament was dissolved for an election over other issues.
During the entire run up to the tabling of Bill C-32 we had a series of lawyers writing op-ed pieces for the major newspapers. These lawyers wrote articles all claiming that we needed to bring our copyright laws into the 21st century, that we needed to ratify WIPO, that we needed to match the U.S. DMCA, and laws enacted by out other major trading partners, that Canada's copyright laws were an international disgrace.
What the lawyers did not disclose, and the newspapers curiously did not bother to ascertain, was that the lawyers in question, all had ties to industries that were backing Bill C-32. Take Barry Sookman for example. He had several opinion pieces published, and was interviewed numerous times. Not once was he identified as a registered lobbyist for the Canadian Recording Industry Association! This information is freely available on the Industry Canada website. Or take James Gannon. James works for the same firm as Barry, in the same city, and on some of the same clients. James too has been interviewed numerous times, and never once did the newspaper doing the interview ask James about his industry connections. He might have been forced to answer with, "I can't tell you," but that answer would have been answer enough alone, because if there were no connection he would have said "None."
So when a lawyer or law firm starts spouting off about something, start asking them pointed questions. Start asking the newspaper pointed questions too about why they didn't ask the questions. After all, if they didn't, they didn't do their job.
Wayne
Posted by Wayne Borean at 1:43:10 on March 30, 2011
Axe to grind
I want to know what axe Chapman Tripp have to grind and it becomes quite obvious when you consider they serve as Microsoft's New Zealand copyright and commercial IP counsel, which means they should be totally ignored because they are not representing NZ's interests.
Posted by mikebartnz at 22:46:24 on March 29, 2011
Posted by mikebartnz at 22:46:24 on March 29, 2011
The national interest first
Chapman Tripp suggest that software patents might possibly be required by international trade agreements. Even if that is determined to be the case, the main thing it shows is that aspects of such trade agreements are at odds with our national interest. And as a sovereign nation we should make every effort to put our national interest first. The overall effect of software patents is to stifle innovation and encourage unproductive litigation.
Posted by Grant Paton-Simpson at 11:36:51 on March 29, 2011
Posted by Grant Paton-Simpson at 11:36:51 on March 29, 2011
In terms of breaking laws...
Any calls of "It is breaking existing international Treaties" are desperate attempts to encourage the government back to the old status quo system.
Most of the treaties they are talking about will be either ;
* GATT
* TRIPS
and soon to be
* TPP (transpacific partnership)
none of these really are any good for anyone.
All of which clearly break New Zealand laws in several areas, relating to sovereign rights in The treaty of Waitangi, and should never have been signed without intense scrutiny from boards of inquiry esp relating to the WAI262 claim.
Any "breaking of existing treaties" parlance thrown around is negated by the fact that we signed up to them whilst breaking our own laws first.
Posted by Joel Wiramu Pauling at 11:09:14 on March 29, 2011
Most of the treaties they are talking about will be either ;
* GATT
* TRIPS
and soon to be
* TPP (transpacific partnership)
none of these really are any good for anyone.
All of which clearly break New Zealand laws in several areas, relating to sovereign rights in The treaty of Waitangi, and should never have been signed without intense scrutiny from boards of inquiry esp relating to the WAI262 claim.
Any "breaking of existing treaties" parlance thrown around is negated by the fact that we signed up to them whilst breaking our own laws first.
Posted by Joel Wiramu Pauling at 11:09:14 on March 29, 2011
Vested interest much?
I simply ask these five questions:
1. What is Chapman-Tripp's interest in this? They are, after all, the lawyers for Microsoft NZ (who, along with their good friends, the NZICT, were caught with their pants down trying to exert influence on the MED after this legislation was first endorsed by the Minister, Simon Power - this blog post provides more detail) They stand to gain much from ensuring that software patent litigation is a "growth industry" in NZ...
2. On whose behalf are they acting? I don't believe they disclosed who is paying them.
3. Why should anyone in the software industry care what Chapman-Tripp thinks?
4. What do Chapman-Tripp's current or future legal machinations contribute to our GDP or are they simply a "bit of gravel in the gearbox" of progress?
5. If TRIPs dictates legislative limitations that the voters of NZ don't want, isn't it NZ's adherence to TRIPs that should be questioned rather than our legitimately developed legislation?
I think Chapman-Tripp have grossly misrepresented this whole software patents exclusion as a "free and open source software" adherent's initiative. They are patently incorrect in making that assertion.
80+% of NZCS' members were against software patents
Consider, too, the existence of NZRise, a representative IT industry association, created by a broad range of kiwi software developers (including both proprietary and free/open source focused) uniting behind the effort to ensure software is excluded from patentability in NZ.
Posted by Dave Lane at 10:54:11 on March 29, 2011
1. What is Chapman-Tripp's interest in this? They are, after all, the lawyers for Microsoft NZ (who, along with their good friends, the NZICT, were caught with their pants down trying to exert influence on the MED after this legislation was first endorsed by the Minister, Simon Power - this blog post provides more detail) They stand to gain much from ensuring that software patent litigation is a "growth industry" in NZ...
2. On whose behalf are they acting? I don't believe they disclosed who is paying them.
3. Why should anyone in the software industry care what Chapman-Tripp thinks?
4. What do Chapman-Tripp's current or future legal machinations contribute to our GDP or are they simply a "bit of gravel in the gearbox" of progress?
5. If TRIPs dictates legislative limitations that the voters of NZ don't want, isn't it NZ's adherence to TRIPs that should be questioned rather than our legitimately developed legislation?
I think Chapman-Tripp have grossly misrepresented this whole software patents exclusion as a "free and open source software" adherent's initiative. They are patently incorrect in making that assertion.
80+% of NZCS' members were against software patents
Consider, too, the existence of NZRise, a representative IT industry association, created by a broad range of kiwi software developers (including both proprietary and free/open source focused) uniting behind the effort to ensure software is excluded from patentability in NZ.
Posted by Dave Lane at 10:54:11 on March 29, 2011
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