Software Patents Bill clause will not be altered
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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.
Posted by Lawrence D'Oliveiro at 14:03:06 on July 16, 2010
As an independent software developer and exporter of services I'm glad that I will no longer carry the risk of patent infringement when I write code. It's good to see Orion Health and Jade publicly stating their opposition to software patents also.
Posted by Jonathan Hunt at 16:35:41 on July 15, 2010
Posted by David at 16:19:15 on July 15, 2010
If you are saying that patents support innovative businesses, you obviously never tried building one.
Most New Zealand software companies can't afford patents, and even if they could afford patents they can't afford patent enforcement. The only people that benefit from patents are large listed multinational companies that use patents to kill competition. That is stopping innovation, not supporting it!
Posted by Igor at 23:32:57 on July 15, 2010
Lawyers love patents. Patents generate lots of revenue for lawyers.
Actual software developers, including me, overwhelmingly loathe patents.
With software excluded from patentability, we'll be able to get on with innovating instead of looking over our shoulders wondering if someone we've never heard of is going to sue over a bogus patent.
Posted by Robert O'Callahan at 21:33:16 on July 15, 2010
I have been quoted by those who support software patents that 79% of software patents are filed by overseas interests. The largest software exporters in New Zealand have openly supported the Minister's decision.
How many software companies actually depend on software patent revenue in New Zealand? How many New Zealand software patents are owned by multinationals? Is there any evidence that patents encourage innovation that wouldn't occur anyway?
Posted by Peter Harrison at 19:05:53 on July 15, 2010
Posted by David at 19:28:20 on July 15, 2010
On the other hand if you spend money developing an innovative mathematical system you get no protection; such protection would be to the detriment of the rest of the country. Software is a description of a set of mathematical calculations written in such a way as to be understandable by a computer, but could always be done by a human with pencil and paper instead without any insight other than knowledge of math. Hence software is a mathematical formula written down, something that's the very basis of computational theory -- the theory behind all computer languages that "makes them work". Math can't be patented. Computer programs should not be patented either.
Posted by Karl O. Pinc at 7:40:02 on July 16, 2010
As for investing: your investment, especially for software as a service, is more attractive in New Zealand after abolishing software patents as companies in New Zealand do not face the risk of being targeted for a patent shakedown.
Posted by Michael at 23:09:00 on July 15, 2010
Posted by Dave Lane at 20:31:49 on July 15, 2010