Software Patents Bill clause will not be altered

Draft guidelines to replace legislative amendment

The contentious clause of the Patents Bill that bars patents on software will not be amended.

Instead, the Intellectual Property Organisation of NZ (IPONZ) “will formulate draft guidelines and seek the views of interested parties”, Commerce Minster Simon Power says. This process will begin once the Patents Bill has passed its final stages in Parliament. “My decision follows a meeting with the chair of the Commerce Committee, where it was agreed that a further amendment to the bill is neither necessary nor desirable,” Power says.

The clause, Section 15(3A) of the Bill, will therefore still read simply “a computer program is not a patentable invention”, a phraseology champions of patents and Ministry of Economic Development (MED) officials thought too sweeping.

MED has said the law’s true intent is software that controls machinery should be patentable, but not software that, in the words of MED spokesman Warren Hassett, “just changes figures on a screen or data on a disk”.

During its consideration of the bill, the commerce select committee received submissions that inventions by companies involving software “embedded” in this way as part of a machine, should be able to obtain patent protection for these inventions.

“The committee and the Minister accept this position,” Power says, but they also accept the contention of those opposing the granting of more general patents for computer programs “that such a move would stifle innovation and restrict competition”.

NZICT Group chief executive Brett O’Riley says he will “await the IPONZ guidelines eagerly”, hoping they will clarify the situation and bring this country's law into line with the position in Europe and the UK, where software patents have been granted. NZICT supports software patents and advocated rewording or repeal of the clause.

Microsoft NZ’s legal counsel Waldo Kuipers suggested last month that reliance on IPONZ guidelines on the extent of patentability of part-software inventions would be “precarious” and risk being struck down in the courts against the touchstone of literal interpretation of an unamended s15(3A). Kuipers was not immediately available for comment following the minister’s recent announcement on the issue.

InternetNZ chief executive Vikram Kumar says historically IPONZ guidelines have proved robust against such attacks.

Yet, Kuipers argues there should be no such thing as a “software patent” as such. An innovation may as well be implemented in hardware as in software, he says and the law should make no discrimination on the strength of how an innovation is realised.

“Software is fundamentally different from a machine,” argues Kumar. “By itself, it doesn’t do what a machine does.”

If the software involved in the internet had been patented, the internet’s meteoric success and popularity would not have happened, he says.

This goes to the heart of the process of invention - the balance of rights between recompense for the inventor and benefit to the human race from subsequent innovations that build on that in a way machines do not, Kumar says.

“Try making a machine that does what software does without software,” says open-source champion Don Christie of Catalyst IT. “You might get as far as the cotton gin and even then it would only be after years of experimentation and manufacture.
“Hardware development is much harder than software. The problem with lawyers telling us how software works is that they are not software engineers,” he says.