Software patents may be allowed in New Zealand after all

US lawyer's blog cites NZ email suggesting ban won't be total

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.

Tags intellectual propertypatentlegalsoftware

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8 Comments

Daniel Reurich

1

I am thoroughly shocked that our parliamentary process can be so easily subverted by Microsoft and their shills.

(NZICT strikes me as just another face of Microsoft with a few chummy vendors that are aligned with their modus operandi. It has no NZ identity except the (I believe inappropriate use of) NZ in that multinationals vendor association.

Simon Powers and the MED must be told clearly that ICT doesn't mean Microsoft, and to stop messing with democratic process to the detriment of the real New Zealand ICT industry.

DonChristie

2

The select committee's report was unequivocal. It said:

"We recommend amending clause 15 to include computer programs among inventions that may not be patented."

Minister Simon Power put out an immediate statement supporting this recommendation.

It must have been *really* hard for MED to retranslate that one but they succeeded.

What is clear from the blog is that NZICT is working for Microsoft and IBM lawyers against the interests of the NZ IT industry.

In the blog he is described as "our representative" by IBM as signing off his "report" with:

"Please confirm you are happy with this approach. I welcome any comments you may have."

It is worth remembering that the Commerce Select Committee heard *all* these views and positions in public and arrived at a considered opinion which was, initially at least, supported by government. This behind the scenes reversion by MED and lawyers representing multi-national corporations is undemocratic. Such changes should not be made unless the consultation process is opened to public again, and even then it should only be done so with *very* good reason.

Dave Lane

3

This is beyond appalling. Given that NZICT lobbies primarily on behalf of overseas multinational interests (in the guise of an NZ-representative group), and that MS and IBM lawyers were involved, this seems a corporate subversion of NZ's democratic processes with secret high-level machinations.

The question is: why didn't the make a submission of their point of view to the select committee, like normal kiwis had to? Why do they get privileged access at our expense?

What's especially hypocritical is that MS are trying to style themselves as champions of "Open Government" with their shambolic "un-conference" (http://www.opengov2010.org.nz). They're trying to redefine the word "open" to mean one thing: "open, as in the kiwi taxpayer's wallet, but closed in every other respect".

Beyond disgusting.

Daniel Lewis

4

Is this same Don Christie who was bragging about his influence in Govt only two days ago:

"Talking to politicians. We have been able access to talk to politicians on many sides of the political spectrum." http://lists.nzoss.org.nz/pipermail/openchat/2010-June/005805.html

Where is the list of politicians you met behind closed doors Don? Hopefully the next NZOSS president is more transparent.

Dan

Jonathan Hunt

5

MED's Hassett claims that "software that changes the operation of the computer itself" is a "borderline case." That means courts and local developers will bear the cost of resolving such issues. Leaving such vital details unresolved does the NZ software development industry no favours.

MED and Power should follow the clear instruction of the Commerce Committee: 15 (3A) A computer program is not a patentable invention."

Joel Wiramu Pauling

6

The EU wording is actually very bad.

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.

Martin Rodgers

7

The NZOSS' submissions (all seven of them) asked the Select Committee to follow European law, it followed European law - what is the big deal?

It is interesting to see that it is a 'hired' gun from the US ( Ciar#n O'Riordan; ciaran@member.fsf.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

DonChristie

8

"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"

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.

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