Patents Bill delay questioned
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NZRise president Don Christie says he is disappointed with delays to the passing of the Patents Bill and questions some of the explanation given by Commerce Minister Craig Foss.
“We keep hearing that this Bill is important for the knowledge economy,” Christie said. “What the minister is saying now is different from what his predecessor, Simon Power was telling us; he was writing letters [to NZRise] last year, telling us the government was pushing the Bill through.”
Despite having been in the Parliamentary process since 2008, the Patents Bill still languishes well down in the Order Paper (No 47 as at Monday April 2), and is awaiting Parliament’s consideration of the Commerce select committee’s report, followed by the Bill’s second reading.
The committee’s report contained a contentious clause barring patents on software. Though there has been some attempt at qualifying this to admit patents on software-controlled machinery and the like, the core clause states “a computer program is not a patentable invention.”
Foss says the delay is a result of the size and complexity of the Bill and the pressure of other legislation. “The government has a full legislative programme, but is committed to making further progress on the Patents Bill,” he says.
“The government is still considering issues arising from the select committee report and is working to ensure New Zealand’s intellectual property legislation takes account of international developments, and is relevant in the 21st century,” he says, pointing out that the Patents Act has not been amended since 1953. “The legislation is complex and the government is committed to a thorough examination of all proposed changes recommended by the select committee.”
Christie says he can to some extent understand the “pressure of other legislation” argument, but not the argument about complexity. “All the complex work has been done,” he says, including a detailed set of guidelines from the Intellectual Property Office of NZ on which products consisting partly of software might qualify for patent.
“I still suspect there are some powerful outside interests slowing it down,” Christie says, pointing to comments over the past year by US politicians favouring software patents. Even in the US opinion is moving against those forces, he says, with recent Supreme Court decisions discounting patents on mathematical algorithms and business methods.
“Any software developer worth his salt will tell you software is just mathematics,” he says.
The Patents Bill was a significant topic of discussion in an InternetNZ debate ahead of the last general election and some of the delegates in recent weeks have been questioning the continued slowness of the Bill’s progress.
As discussed at the time of the debate, there have been rumours that the Bill has been deliberately held back as potentially relevant to concessions that may be made as part of the Trans-Pacific Partnership trade agreement.
Foss’s staff passed that part of our query on to Trade Minister Tim Groser’s office. Groser did not directly address the rumour and replied simply: “Progress on the Patents Bill is dependent on the wider legislative programme.”
Last week New Zealand Computer Society CEO Paul Matthews says that while there is no firm evidence that the Patents Bill has been “put on ice” owing to negotiation of the TPPA, he says the possibility must give cause for concern.
Not only are Waldo's statements wrong - there has been plenty evidence presented of the net economic harm caused by software patents (just Google Lodsys or any of Microsoft spin-off troll patent companies) - it would appear that even that Microsoft and the USTR are out of step with the US Supreme Court. Two rulings in the last 12 months will have a radical impact on the patentability of software, these being the Bilski and Prometheus judgments. The latter being a unanimous verdict.
But the real concern here is that Ministers Power and Joyce both gave repeated assurances that the Patent Bill would be submitted to Parliament without any changes to the wording that came out of Select Committee. To see the Government go back on so many assurances would be a real blow to its credibility and any trust that the NZ IT industry can give to its statements in the future.
Posted by Don Christie at 9:21:26 on April 16, 2012
At the InternetNZ debate before the 2011 election, Steven Joyce said loudly and clearly that it's merely a matter of the bill getting priority. I trust he was telling the truth.
Posted by John Rankin at 21:46:33 on April 13, 2012
I argued this is my MSc, at the select committee hearings, and via examinations of submissions. Don't take one source as canon tho - These researchers published a book on the topic - and they are economists!
For whatever reasons the current government is stalling passing the Patent Bill into law; everyday is does so it is missing an opportunity to provide NZ with a legislative position, which would encourage industry to our shores.
Posted by Joel Pauling at 10:20:46 on April 13, 2012
My blog post some time ago summarises various opinions and submissions on the issue, including opinions from people with deep expertise and extensive experience in using the patent system.
Posted by Waldo (Microsoft) at 11:04:15 on April 12, 2012
Posted by Anonymous at 14:41:30 on April 12, 2012
But that doesn't mean software patents are widely supported within the software industry (they're not) or, on balance, good for New Zealand. Sorry, but I'd back the tech sector over IP lawyers any day of the week.
Posted by Paul Matthews at 12:26:49 on April 12, 2012
The latest round of submissions included the following, who all recommended that clause 15(3A) be deleted or changed. None of those I've listed are New Zealand patent attorneys, so even if you wish to call into question whether patent attorneys represent their clients well (my own experience is that do) then there is clearly significant expert and hi-tech sector opposition to clause 15(3A).
Directorate General Trade, European Union
NZ Institute of Plant and Food Research
Fisher & Paykel Appliances
Business Software Alliance
Airways New Zealand
Business New Zealand
Microsoft New Zealand Ltd
Technology Interest Group
New Zealand Law Society
Air New Zealand
You can find a link to the complete list of submissions, as well as various summaries of these and earlier submissions, on my blog post.
Submissions on Software Patents in New Zealand
Posted by Waldo (Microsoft) at 14:50:07 on April 12, 2012
And a number of those listed (eg F&P) were addressing embedded systems, not software in general. But let's not get into that yet again - it's been debated ad nauseum and the net result was the removal of patentability from software, supported unanimously by the Commerce Select Committee made up of all political parties.
Posted by Paul Matthews at 17:51:07 on April 12, 2012
"New Zealand Law Society"
Posted by Tom at 15:48:54 on April 12, 2012
Posted by Waldo (Microsoft) at 15:54:12 on April 12, 2012