Microsoft, A J Park support Patents Bill change
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Industry group NZICT has come out in support of the amendment to the Patents Bill. In a press release CEO Candace Kinser says the changes will "encourage new technology developments."
"This Bill will aim to align New Zealand with Australian laws for processing patents to create a single trans-Tasman patents examination regime, and bring our process into international best practice standards," says the release.
"Importantly, Clause 15(3A) would have excluded computer programs from patentability, stating that “a computer program is not a patentable invention”. If passed into law, the clause would have been unique in the world, adding to filing costs for multi-country patent applications and discriminatory for New Zealand. Clearly that would have been inconsistent with the objective of enhancing exports and cross-border trade."
Industry representatives who lobbied for the inclusion of software patents in the Patents Bill are pleased with the amendments detailed in the Supplementary Order Paper yesterday.
“Microsoft welcomes the government’s decision to clarify the language of the Patents Bill,” says Waldo Kuipers, Microsoft corporate affairs manager
Kuipers was one of the architects of a June 2010 meeting of pro-software-patent industry representatives with Ministry of Economic Development officials after the select committee had reached its conclusions, aimed at persuading the government to change its mind.
In an email he refers Computerworld to a blog posted in April 2011 on Microsoft’s GovTech site where an unnamed Microsoft contributor says the unamended form of the software clause would create uncertainty.
“We think the focus should be on patent quality, not on an arbitrary exclusion,” says the blog. “However, if there must be an exclusion, the question must be asked: ‘How can inventors and investors make decisions about their commercialisation strategy if it is not even clear which inventions are now to be excluded from protection?’
“If no patentable inventions are to be excluded from protection, or no one can say with certainty which patentable inventions (if any) it will exclude, clause 15(3A) will just be a troublesome white elephant, leading to years of pointless litigation to figure out something the government can easily fix now with the stroke of a pen.”
The blog appends a pie-chart analysis of submissions on the Bill, claiming about 2/3 of them supported change to or complete deletion of the controversial clause.
Kuipers’ email to Computerworld also links to the Chapman Tripp article cited in our earlier story and to a comment on the latest SOP by Matt Adams, partner at patent attorneys A J Park. Adams says the Select Committee and MED previously showed themselves inclined to a harmonisation with European law and the bald statement “a computer program is not a patentable invention” contradicted that.
Adams quotes the explanatory note to Foss’s SOP, saying the amended clause is “considered to be more consistent with New Zealand's international obligations ... [and] is also more consistent with overseas precedents and makes it clear that it is only computer programs themselves that are ineligible for patent protection.”
“I guess it took a new minister to perform a sanity check on the original exclusion,” Adams says. When the original exclusion was written into the Bill, Simon Power was Commerce Minister.
Quoting from page 5&6 "We recommend ammending clause 15 to include computer programs among inventions that may not be patented. ... After careful consideration we concluded that developing a clear and definitive distinction between embedded and other types of software is not a simple matter, and that, for the sake of clarity, a simple approach would be best."
I actually spoke with an MP on the Select Committee in question and the response was that a decision was made to exclude software patents. The clarity is in drawing the bright line firmly on the apparatus side (and not method) may not be to the liking of all but under the rules of parliament, legislation reflects the balance of interests of constituents.
Least people think companies will unilaterally withdraw and NZ be left in a technological twilight zone, I'd like to point out that china has no software patents and protected expressly under copyright (as is clearly stipulated under TRIPS) and western companies are piling in to establish R&D centres there.
Posted by drllau at 1:00:19 on September 8, 2012
Posted by Daniel Reurich at 9:27:20 on September 4, 2012
What if New Zealand could have the same effect, where future competitors of Microsoft or IBM, frustrated with North America, left for New Zealand to develop in peace without fear of retaliation? What if the reason Microsoft and IBM are attempting to write NZ law, is because they are afraid that a small company can put them out of business... and the only place on earth that might have happened was in New Zealand?
These patents cover the most absurd notions. The majority of knowledge I acquired in fulfillment of my computer science degree is patented! How am I to start a company in this environment?
Posted by Anonymous at 12:18:49 on August 30, 2012
IP Lawyers like AJPark's Matt Adams have a huge vested interest in including the words "as such" in the pending Patents Bill legislation... because it creates a) an easy way for software patents to be granted *despite* the intention of the bill to exclude software patents, and as a result b) creates lots of confusion around the law (as it has done in the EU) which MAKES HIM MORE MONEY at the expense of broader NZ society who ultimately carry the can in the form of more expensive technologies and/or lack of innovation in our economy.
Make no mistake: IP lawyers don't write software. It's not them who software patents are meant to inspire to create. Their approval or disapproval of the legislation is IRRELEVANT. As for their position: just follow the money.
Posted by Dave Lane at 11:15:29 on August 30, 2012