Software patent debate rages on
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The question of software patents looks unlikely to go away soon, with significant lobbies forming on both sides and a wealth of comment in live forums, letters to the Minister by InternetNZ and the NZ Computer Society, in Computerworld’s own online comment space and on Twitter and Slashdot.
Official bodies and individual commentators are not easily letting go of an apparent reinterpretation of a Select Committee’s wishes regarding a clause excluding software from patent in the Patents Bill. In some quarters the argument is sliding over into one of openness in the legislative process and who truly represents the local ICT industry.
Committee member and Labour ICT spokesperson Clare Curran is uncomfortable with what she calls the “revisiting” of the clause. At last week’s OpenGovt2010 “unconference” she cited the incident as a good example of how the lawmaking process is sometimes less than open or transparent. She referred to “how legislation gets made and the discussions that go on behind closed doors” – discussions that should, she said, “happen in a more transparent environment”.
When the Commerce Select Committee issued its report on the Patents Bill earlier this month, exclusion of software from patent protection appeared definite; even those, like the NZICT Group, who supported software patents, were under the impression they had been ruled out without exception.
The committee’s report mentions the possibility of an exception for “embedded” software – software whose only purpose is to control a machine – and says the committee found the concept too difficult to define. They decided not to put it in the bill, but to opt for a simple exclusion of all software.
The only evident qualification of that simple pronouncement was a recommendation that the Intellectual Property Office of NZ “develop guidelines for inventions containing embedded software”.
“We received advice that our recommendation to include computer programs among the inventions that may not be patented, would be unlikely to prevent the granting of patents for inventions involving embedded software,” the committee adds.
Now, following discussions between Ministry of Economic Development officials by members of the NZICT Group, the ministry has decided that the real intent of the committee, all along, was to treat machine-controlling software as a special class that may be patentable.
NZICT’s most prominent members are multinational ICT companies, like IBM and Microsoft – companies used to having their intellectual property stringently protected.
“What is clear from the [US-based] blog [that revealed the NZICT-MED discussions] is that NZICT is working for Microsoft and IBM lawyers against the interests of the New Zealand IT industry,” claims open-source champion Don Christie on the Computerworld website.
Coincidentally, the US Supreme Court last week handed down a decision keenly awaited in the international software community (the case of Bilski et al v Kappos) that a process for hedging against risk in the energy market is not patentable. However, this decision is not likely to be as influential as software-patent opponents would like it to be. Legal experts quickly pointed out that the Bilski decision is relevant to the particular circumstances of the case; it does not rule out all patents for business processes or their software embodiment.
Both the NZ Computer Society and InternetNZ have come out in favour of the unqualified “no software patents” stance.
Computer Society CEO Paul Matthews argues that “if software is viewed as a manifestation of ‘real world’ concepts, then the real-world concept can be patented without the need for a separate software patent.” Here he echoes the select committee’s view that software patent exclusion would not compromise patents for software-controlled machinery.
“If on the other hand software is considered as a separate concept from the physical world it must be considered an algorithm, in which case it would not pass the test of patentability in most jurisdictions,” Matthews says, in a letter to Commerce Minister Simon Power.
In its own letter to Power, InternetNZ has called for the “changes” in the Patents Bill on software to be referred back to the select committee, with an opportunity for further input by “those who originally made submissions”. Ironically, this would cut out NZICT, who did not make a submission. To get a representative point of view the committee may be forced to open submissions more generally.
One accepted way for a further amendment or clarification to be put through is by a supplementary order paper (SOP), produced in Parliament during a second or third-reading debate and voted on only by the MPs present
“SOPs can allow for useful improvements to the meaning of legislation, but they can also go horribly wrong,” says InternetNZ policy director Jordan Carter.
“The debacle of the section 92A amendments to the Copyright Act in 2008, also involving last minute changes through SOP, show the importance of careful and public scrutiny of any last minute changes,” he adds.
“A short delay of a couple of weeks would give the Committee time to assess any changes the Government may propose, and to work out in the bright sunlight of transparent scrutiny whether they meet New Zealand’s needs,” Carter says.
My questions would be:
1) How much of the opposition is FUD? IOW how many NZ firms actually have been sued over a stifling or frivolous NZ patent in real life? It happens a lot in the US but there are other factors there, such as the fact that courts rarely award legal costs so there's no disincentive for a patent troll to sue and sue, confident that people will settle to avoid the nuisance and legal expense. NZ Courts do award legal costs and damages, especially for really daft claims.
2) By comparison, how many NZ firms have come up with great innovations that got scooped by other vendors because the inventor did not protect their IP? This isn't limited to kiwifruit, it happens in software too.
3) We hear quite a lot from NZ firms who haven't been awarded any software patents. There can be many reasons for this, but before we go there, what about firms who have secured a NZ software patent and/or who used it to achieve priority elsewhere in the world? Have we heard from any of them? Are there any?
Posted by JackR at 9:54:04 on July 16, 2010
I find it interesting, also, that a survey of the comments below shows that almost all of the pro-software patent comments are posted by anonymous posters. Or perhaps it's just one anonymous poster. Who knows.
The obvious question: where are the outspoken pro-software patent software developers?
Really, only the (so called) NZICT and its multinational corporate masters support software patents. Oh, and AJ Park, who I'm sure are participating in this forum on principle, not as mercenaries. Heh. Yeah right.
Posted by Dave Lane at 8:19:37 on July 15, 2010
Thanks for publishing this thought provoking article. I have appreciated the opportunity to make some fact based observations on:
(a) the absence of a New Zealand Computer Society (NZCS) submission
(b) the InternetNZ submission
(c) the New Zealand Open Source Society (NZOSS) submissions (NZOSS, Catalyst IT, Egressive)
(d) the Ministry of Economic Development (MED) October Report
(e) the MED January Report
I don't seem to have provoked many sensible comments in reply. I guess it is time to move on. However, looking again through the comments, something strikes me as a little odd.
Most of the comments come from David Lane (NZOSS Council member), Don Christie (current NZOSS president) and Peter Harrison (founder of NZOSS, immediate past president and current vice-president).
All of these individuals to one extent or another assure me that the NZOSS is against software patents.
David Lane points out that "NZOSS does not want software patents. At all. Anywhere. And especially not in NZ."
Don Christie says, on behalf of the NZOSS, "when we argue now that computer programs, whether actually executing on your PC or sitting on a print out, should not be patentable#that is what we mean".
The most vocal champion of the anti-software patent stance is Peter Harrison. He states that he "made the decision to start the NZOSS and work for freedom from software patents out of a sense of justice for New Zealanders; to support our IT industry. This isn't about supporting only Open Source, it's about protecting NZ from the kinds of protectionist abuse common in the US".
Does anyone else find it a little odd to see Peter Harrison as a software patent applicant?
Intellectual Property Office of New Zealand (IPONZ) records show that Peter Harrison filed New Zealand Patent Application 550451 in October 2006. The title is "Method for the automatic collection of employee income tax". Only bibliographic details are published by IPONZ. The subject matter is known from the category assigned to the invention by IPONZ. The subject matter relates to "digital computing or data processing equipment for methods, specially adapted for specific applications." In other words, a computer-related patent application. For simplicity I'll call it a software patent.
Is this the same Peter Harrison? If so, what's the story?
Is it a case of do as I say not do as I do? Why should the founder of the NZOSS be able to file patent applications for computer-related inventions in New Zealand and still insist that others can't? How is this providing "freedom from software patents out of a sense of justice for New Zealanders?"
Or is it simply recognition and acceptance that open source software and patent protection are not incompatible? Surely they are not mutually exclusive if the founder of the NZOSS indulges in both.
Personally I have no problem with individual groups taking an anti-patent stance. Assign whatever label you want to it. Call it a hobby, campaign, movement, struggle, battle, belief, religion, cause, crusade, jihad, doctrine, dogma, creed, faith. Whatever.
Similarly I have no problem with individuals filing patent applications for software-related or computer-related inventions.
But Peter Harrison simply can't do both. He can't set up a group that he now says has an anti-patent stance when he is a patent applicant himself. It simply doesn't work.
I'm comfortable with the media, lawmakers and the general public looking to the NZOSS for comment on the promotion of open source software in New Zealand. But the NZOSS simply has no credibility when commenting on patent law reform.
The media reports that NZOSS is doing a good job getting open source software on public sector desktops. Maybe that's where the NZOSS should continue to focus its efforts. It could do better. Perhaps it needs more moderate rather than militant champions. A topic for the upcoming NZOSS AGM surely.
Posted by Matt Adams at 6:55:15 on July 14, 2010
"But Peter Harrison simply can't do both. He can't set up a group that he now says has an anti-patent stance when he is a patent applicant himself. It simply doesn't work."
To me it feels as if you're just trying to discredit an organization. I'm involved in a number of groups now and those who established those groups have very little to do with the group's stance.
So had Peter personally benefited from the filing of that patent, he's an individual, not the group. Attack the group on the statements of the group rather than the individuals who belong to the group.
Posted by Nevyn at 13:43:48 on July 14, 2010
Once again, it would really help us respond, from a contextual perspective, if you could let us know on whose behalf you are researching and posting.
You have said to me that in the past that AJPark's "role is to advocate for our clients, and not to promote a particular 'A J Park position'" with regards to software patents. So it would be better, perhaps, if you simply let your client speak for themselves.
Posted by DonChristie at 11:59:57 on July 14, 2010
My patent application was in fact a strategy similar to the GPL; using the existing law to our advantage. If the patent had been granted would have prevented banks and IRD from implementing this sensible idea without first paying me. It would have brought into sharp relief exactly what the problem with software patents was.
What I would not have done given the opportunity would be to use the patent for my own personal financial benefit. The intent was to use it as a teaching opportunity about the dangers of software patents.
However, I must reinforce that it was not filed in bad faith. The idea is no less valid than say "using XML to store word processing documents", or any one of the thousands of ideas I have seen in my career. Good ideas tend to get implemented; and that is where the rubber meets the road. That is where the hard part is.
Furthermore I have made no secret of the fact that I filed this patent, having written a blog article on my own web site detailing it and the reasons I filed it.
Now, if you had evidence that I personally profited from the patent you might have a case. But I didn't, and I did make a commitment to give any proceeds of the patent to oppose software patents.
Posted by Peter Harrison at 9:31:17 on July 14, 2010
The October Report set out three options for the Committee. These are:
(a) exclude all software from patent protection, including embedded software;
(b) leave things as they are; or
(c) adopt a hybrid UK/EPO approach.
For reasons known only to the Committee, it asked for a further briefing on the issue of the patentability of computer programs. This resulted in the Supplementary Report to the Commerce Select Committee in January 2010 ("the January Report"). The Committee still supported some restrictions on the patenting of software, while retaining the patentability of "embedded" software.
At the request of the Committee, the MED prepared the January Report that looked at two possible approaches. These are:
(a) allow patents on embedded software & exclude all other software; or
(b) exclude computer programs from patent protection.
Option A in the January 2010 report was not the MED preferred option. There is no simple definition of "embedded" software that could be incorporated into the Bill. IPONZ would not be able to make use of case law or practice developed elsewhere. The MED found that "there is no simple definition which exactly captures the idea of 'embedded software' or 'embedded systems'". Devising a simple definition would "likely be difficult, if not impossible". Technical advances may "mean that any definition fixed in legislation becomes obsolete fairly quickly". No other country has attempted to make the distinction between "embedded" and "non-embedded" computer programs in patent legislation.
MED made it clear that Option A was certainly not the MED preferred option.
Remember that the MED preferred option was to leave things as they are, as stated in the October Report. When pressed by the Committee, it came up with the next best thing.
Option B in the January 2010 report suggested an exclusion from patent protection for computer programs, "the wording of the exclusion being similar to, or the same as, the exclusion for computer programs contained in the EPC and the UK Patents Act." The MED report stated that "IPONZ has indicated that if such an exclusion was provided, it would use EPO and UK case law and practice to interpret the exclusion".
The report went on to state that "despite what appears to be a 'blanket' exclusion, the EPO and UK courts have ruled that some types of computer programs can be patented. In general, if an invention involving a computer program possesses a 'technical character' it will be patentable."
Option B was the MED preferred option of the two options in the January 2010 report.
This option is the only option that can be sensibly reconciled with the statement in the commentary to the Patents Bill that says "we received advice that our recommendation to include computer programs among the inventions that may not be patented would be unlikely to prevent the granting of patents for inventions involving embedded software." Option B is the only option that makes sense.
It is clear that the Commerce Select Committee chose Option B (European law) from the January 2010 report. However, the wording of the exclusion proposed by the Committee does not reflect the intention of the Committee to follow European law.
I said it earlier and I say it again. Let the Government and the MED get on and implement the changes. The fact that there is any statutory restriction on patenting software at all shows a flaw in this lawmaking process.
Both InternetNZ and NZOSS argued for European law. Both groups knew or should have known what that meant. It is not enough for these groups to now turn around and say they thought they were arguing for a blanket exclusion. This is simply not acceptable.
Sometimes, vigorous but inept lobbying can get you what you ask for, but not what you actually want.
Posted by Anonymous at 6:16:23 on July 13, 2010
The EU is only of interest to the extent that their legislation is what we want: NO SOFTWARE PATENTS (embedded or otherwise).
The gov't will lose face if they now go back on the position they gave their vocal support, as well as going against the Select Committee's unanimous recommendation.
A change of position now would be tantamount to "pulling a Tizard". I wouldn't wish it on anyone to be tarred with that nasty brush.
Posted by Dave Lane at 10:27:54 on July 13, 2010
Posted by Matt Adams at 9:12:51 on July 13, 2010
Where did this 'advice' come from? Did it come from the Ministry of Economic Development (MED)?
The report of advice from the MED to the Select Committee in October 2009 ("the October Report") records that the Committee wanted to restrict the "patentability of computer software while maintaining the patentability of so-called 'embedded software'" (para 26).
MED set out three options for the Committee. These are:
(a)*exclude all software from patent protection;
(b)*leave things as they are; or
(c)*adopt a hybrid UK/EPO approach.
The MED recommendations in the report are clear.
Option C was not the recommended approach. It is described in the report as far from ideal (para 57) and difficult to implement (para 59).
The MED suggested the best approach was to either (a) exclude all software from patent protection, or (b) leave things as they are. (para 53).
The MED document goes on to state that a blanket exclusion (Option A) would be relatively easy for the Intellectual Property Office of New Zealand (IPONZ) to implement and would leave no doubt as to what was intended (para 53). However, a blanket exclusion for computer programs would also exclude "embedded" software from patent protection in New Zealand (para 54).
It was then over to the Committee. The MED advice states that if the "Committee feels that it is essential to maintain the patentability of embedded software in New Zealand, it may be best to maintain the status quo" (para 54). This is Option B. In this case the Patents Bill "should not contain any explicit provisions regarding the patentability of computer software" (para 60).
If the Committee indeed received advice that excluding computer programs from patent protection would still allow the granting of patents for embedded software, then the October Report is not it.
The recommended approach, if the Committee wanted patents for embedded software, was Option B. Leave things as they are. No explicit provisions regarding the patentability of computer software.
This would not mean opening the floodgates. It would simply mean continuing to apply the existing clear set of guidelines as to what is patentable subject matter and what is not. The patentability of software in New Zealand has evolved over the last two decades through interpretation of the concept of "manner of manufacture" by Courts and Patent Offices in both New Zealand and Australia.
For reasons known only to the Committee it did not follow the advice of the October Report. It asked for further advice from the MED. Why did it do this? Was the advice wrong? Or was it simply because the Committee didn't like it?
The Committee received advice on all aspects of the Bill from the MED. In almost every instance the Committee followed the advice of the MED in preference to public submissions. Why did it pick this particular issue to depart from MED advice?
Perhaps it was the result of public submissions. If so, what guidance did the Committee receive from industry groups during the public participation process?
The New Zealand Computer Society (NZCS) did not participate in the process at all.
InternetNZ made a written submission misstating the law in both NZ and Europe and urging the Committee to pay attention to the New Zealand Open Source Society (NZOSS) submission.
The NZOSS and its Council member companies Catalyst IT and Egressive between them made seven written submissions. The NZOSS argued for alignment with European law. It is now becoming apparent that the NZOSS did not know what that meant, and did not bother to find out. Despite this inexcusable lack of preparation, were the submissions from industry groups InternetNZ and NZOSS so compelling that the Committee felt it could not follow the MED advice in the October Report?
Posted by Matt Adams at 8:46:40 on July 12, 2010