Thumbs down for software patents in NZ

Commerce Select Committee tips its hat to open source submissions

Open source software champions have been influential in excluding software from the scope of patents in the new Patents Bill.

Clause 15 of the draft Bill, as reported back from the Commerce Select Committee, lists a number of classes of invention which should not be patentable and includes the sub-clause "a computer program is not a patentable invention."

"We received many submissions concerning the patentability of computer programs," says the committee in the preamble to the Bill. "Under the Patents Act 1953, computer programs can be patented in New Zealand, provided they produce a commercially useful effect.

"Open source, or free, software has grown in popularity since the 1980s. Protecting software by patenting it is inconsistent with the open source model and its proponents oppose it. A number of submitters argue that there is no 'inventive step' in software development, as 'new' software inevitably builds on existing software."

Software can still be protected by copyright and by the terms of its licence.

A requirement for a genuine "inventive step" -- a development that would not be obvious to a person skilled in the appropriate field -- is a feature of the Patents Bill, which in general imposes tighter requirements than the existing Act before a patent can be obtained.

"[Some submitters] felt that computer software should be excluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques. In general we accept this position," the committee says.

It admits that there was some doubt over embedded software, which forms an integral part of a machine. It sought ways of making a distinction between embedded and other software and decided drawing a "clear and definitive" line would be too difficult.

In addition, "we received advice that our recommendation...would be unlikely to prevent the granting of patents for inventions involving embedded software," the committee says.

NZ Open Source Society president Don Christie applauds the move in his blog Pass the Source.

"New Zealand MPs of all parties are to be congratulated on recognising what to many, for many years, has been patently obvious," he writes. "There are some members of that committee that paid particular attention to the detail of the debate; there were also lots of submissions made by patent lawyers in favour of patents.

"These MPs weighed up the arguments and came down against software patents. This is ground-breaking and visionary. I congratulate our law makers today.

"To all who took the time and effort to write submissions and who took the unique step of coming to Wellington and backing up those submissions orally...congratulations."

Reaction to the change among a broader range of developers at a Computer Society meeting in Wellington last night was also positive.

Christie and other supporters acknowledge the battle is not won yet. The Bill now goes back to the full Parliament for its second reading.

It has also been divided into two parts; the sections concerning registration of patent attorneys have been extracted into a separate Bill, which will be delayed, because of the need to co-ordinate these provisions with Australian law.

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