Software patents may be allowed in New Zealand after all
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Software patents, apparently on the way to being ruled out for New Zealand after a Select Committee decision on the Patents Bill, might not be completely excluded after all.
The committee earlier this year inserted a clause in the second-reading copy of the Bill [Section 15(3A)] reading simply “a computer program is not a patentable invention.”
On June 9 there was a meeting between Ministry of Economic Development (MED) officials and a delegation of local and international software companies led by Brett O’Riley of industry lobby NZICT Group.
A US patent attorney’s blog reproduces the text of what it says is an email from O’Riley: “In summary, the MED confirmed earlier statements from Select Committee members and MED officials that the intent was to follow European law (even though this is not mentioned in the Commentary to the Patents Bill). The MED acknowledged that amendment is required to achieve this and that the Minister (Commerce Minister Simon Power) supports finding a reasonable way forward on this point before proceeding with the Bill.”
European Law, however, is still rather inconclusive on the matter. The European Patent Convention on its face excludes software patents but the European Patent Office has been granting them. An attempt to resolve the question last month foundered.
Shortly after the blog, by Minneapolis patent law firm Schwegman, Lundberg & Woessner, was detected by local patent-watchers, it disappeared from the internet, but screenshots and a transcript have been preserved.
MED spokesman Warren Hassett says that blog is “not entirely accurate”; there has been no reversal, rather he and colleague Rory McLeod clarified the intent of the Committee’s amendment, “which is evident if you read the full text of their report”. The NZICT and software company representatives, he says, “went away happier, but not entirely happy”; they, as recorded in the blog, would have liked to see the exclusion taken out altogether, Hassett says.
While there is still some friction between pan-European and national authorities on the situation in Europe, the basic principle is clear and can be followed, Hassett says. If software has a “technical effect” — if it controls a piece of machinery, for example — it will be patentable, subject to the usual criteria of inventiveness and originality, but if it “just changes figures on a screen or data on a disk” it will not.
He acknowledges that software that changes the operation of the computer itself — presenting an easier-to-use interface or improving disk access performance, for example — would be a borderline case.
Local commentators on Twitter have reacted negatively to the development, seeing a back-door approach by NZICT and the international software companies that are its prominent members, when NZICT had not itself made a submission to the committee.
The meeting with MED, according to the blog, included representatives of Microsoft and IBM, as well as local company Pingar and a written representation from another local developer, Aptimize.
Replying to Computerworld’s initial story and this reporter’s Twitter summary of the MED point of view they argue that the select committee’s report cannot be interpreted as MED now wishes to; the statement ‘a computer program is not a patentable invention” is unequivocal, says NZ Open Source Society president Don Christie.
The committee’s report does consider the question of “embedded” software, of the kind that controls machinery but, as reported in our original story, the committee backed away from clearly carving it out as a separate, patentable class.
“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,” the report 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,” the committee added.
The NZICT meeting with MED included representatives of Microsoft and IBM, as well as local company Pingar and a written representation from another local developer, Aptimize.
O’Riley says NZICT had not originally made a submission to the select committee because it did not expect the question of software patents to emerge. When it did “we were surprised and asked for the clause to be repealed. It was clear that wasn’t going to happen, so I asked for a meeting with MED.”
There is nothing unusual about this, he suggests; “we meet regularly with a number of government agencies.”
The industry party ran through examples of software from Pingar, Aptimize and others and the meeting concluded, informally, that those would have enough of a “technical effect” and sufficient inventiveness to be patentable, O’Riley says.
“They’re not IPONZ [the Intellectual Property Office of NZ] so that opinion’s not definite” but the party left feeling more confident, he says. The campaign for software patents is unlikely to be pursued further.
O’Riley presented a report from the meeting to the NZICT board “and someone there must have passed it on” which is presumably how it ended up on the lawyer’s site, he says. The blog thanks Paik Saber of IBM for “relaying this information”.
“There was nothing there that was at all confidential”, says O’Riley.
Really? A Patents Bill not cover software patents. I am now left gasping at the incompetency of NZICT.
But I also take Brett's comments with a pinch of salt. Previously he claimed they didn't submit because he had received assurances from officials that things would turn out for the best and software would still be patentable. Seems these officials are keeping to their word, even if it means turning the direction of our elected officials on its head.
The multinational members of NZICT's certainly had their views well aired in the many submissions AJ Park and others made. So to suggest that their position was not heard is a bit of a "misspeak". The problem was, the economic and moral evidence is against software patents. And it was the evidence the Select Committee weighed up and concluded on.
Posted by DonChristie at 7:36:09 on June 25, 2010
Posted by Mark Lawerence at 8:57:00 on June 25, 2010
And there were many submissions on software patents. The ones in favour were mostly for AJ Park on behalf of "clients". AJ Park to every opportunity to address "issues" they had with submissions against s/w patents.
So, the SC heard submissions from across the board, assessed the evidence and concluded that Computer programs should not be patentable.
Posted by DonChristie at 13:42:34 on June 25, 2010
I posted it because, I am concerned these public statements stopped busy organisations from making SC submissions.
The SC process clearly has precedent to any statement by a Ministry.
But, it is concerning that the SC might not have heard from a representative sample of organisations because of this statement. Don't you agree?
Posted by Mark Lawerence at 14:37:59 on June 25, 2010
The recommendation and wording in the draft is very sound legally, and won't result in the legalise wording around the issue that is happening overseas.
The current eyes are on the Bilski case in the US this week.
Also Warren Hassets comments on "technical effect" are badly placed, and is an artificial distinction which should not be allowed to exist. Just because I pair two non-patentable things (Software Algorithm + PC platform) should/does not = patentable thing. With the technical effect discourse being thrown around this would be the case which is clearly ridiculous.
Posted by Joel Wiramu Pauling at 15:48:05 on June 24, 2010
It is interesting to see that it is a 'hired' gun from the US ( Ciar#n O'Riordan; firstname.lastname@example.org ) that is the driving force behind this local anti-patents movement. So much for this being a debate about what is good for NZ.
Check out the NZOSS mailing list for confirmation of this - http://nzoss.org.nz/mailinglists
Posted by Martin Rodgers at 7:38:45 on June 24, 2010
The first submission (21) appeared to favour harmonisation with Europe over harmonisation with the United States.
The second (21A) tabled an academic paper.
The third (21B) was made well after written submissions closed and verbal submissions had been heard. The submission was sent to only two members of the Commerce Select Committee. Ironically, it criticised what it saw as multiple submissions made by others, criticised the practice of addressing issues raised by other submitters, and asked that its third submission be taken into account "in the interests of completeness and fairness".
Posted by Matt Adams at 21:36:31 on July 5, 2010
Did you think this was a secret or something?
The NZOSS mailing lists have always been open, nice to know that they are also being read. People can subscribe and participate here:
Your comments about Ciaran are libellous but I expect you know that and just wanted a reaction. A bit sad really.
Posted by DonChristie at 19:03:19 on June 24, 2010
As for the "hired gun" suggestion I might point out that I personally wrote the submissions, drawing in part from existing overseas resources, without any payment or consideration. The NZOSS has not paid anyone, nor received any payments from overseas interests.
Furthermore, focus on the NZOSS submission fails to recognize that there were many submissions from various organisations and New Zealand Citizens supporting the "no software patents" position. While I would like to take credit for this decision I think that the real credit belongs to the Commerce Select Committee in their examination of harms and benefits of software patents on the New Zealand Economy.
Posted by Peter Harrison at 18:50:11 on June 24, 2010
MED and Power should follow the clear instruction of the Commerce Committee: 15 (3A) A computer program is not a patentable invention."
Posted by Jonathan Hunt at 23:40:23 on June 23, 2010