Software patent debate rages on

The question of software patents looks unlikely to go away soon, with significant lobbies forming on both sides and a wealth of comment in live forums, letters to the Minister by InternetNZ and the NZ Computer Society, in Computerworld's own online comment space and on Twitter and Slashdot.

Official bodies and individual commentators are not easily letting go of an apparent reinterpretation of a Select Committee's wishes regarding a clause excluding software from patent in the Patents Bill. In some quarters the argument is sliding over into one of openness in the legislative process and who truly represents the local ICT industry.

Committee member and Labour ICT spokesperson Clare Curran is uncomfortable with what she calls the "revisiting" of the clause. At last week's OpenGovt2010 "unconference" she cited the incident as a good example of how the lawmaking process is sometimes less than open or transparent. She referred to "how legislation gets made and the discussions that go on behind closed doors" -- discussions that should, she said, "happen in a more transparent environment".

When the Commerce Select Committee issued its report on the Patents Bill earlier this month, exclusion of software from patent protection appeared definite; even those, like the NZICT Group, who supported software patents, were under the impression they had been ruled out without exception.

The committee's report mentions the possibility of an exception for "embedded" software -- software whose only purpose is to control a machine -- and says the committee found the concept too difficult to define. They decided not to put it in the bill, but to opt for a simple exclusion of all software.

The only evident qualification of that simple pronouncement was a recommendation that the Intellectual Property Office of NZ "develop guidelines for inventions containing embedded software".

"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 adds.

Now, following discussions between Ministry of Economic Development officials by members of the NZICT Group, the ministry has decided that the real intent of the committee, all along, was to treat machine-controlling software as a special class that may be patentable.

NZICT's most prominent members are multinational ICT companies, like IBM and Microsoft -- companies used to having their intellectual property stringently protected.

"What is clear from the [US-based] blog [that revealed the NZICT-MED discussions] is that NZICT is working for Microsoft and IBM lawyers against the interests of the New Zealand IT industry," claims open-source champion Don Christie on the Computerworld website.

Coincidentally, the US Supreme Court last week handed down a decision keenly awaited in the international software community (the case of Bilski et al v Kappos) that a process for hedging against risk in the energy market is not patentable. However, this decision is not likely to be as influential as software-patent opponents would like it to be. Legal experts quickly pointed out that the Bilski decision is relevant to the particular circumstances of the case; it does not rule out all patents for business processes or their software embodiment.

Both the NZ Computer Society and InternetNZ have come out in favour of the unqualified "no software patents" stance.

Computer Society CEO Paul Matthews argues that "if software is viewed as a manifestation of 'real world' concepts, then the real-world concept can be patented without the need for a separate software patent." Here he echoes the select committee's view that software patent exclusion would not compromise patents for software-controlled machinery.

"If on the other hand software is considered as a separate concept from the physical world it must be considered an algorithm, in which case it would not pass the test of patentability in most jurisdictions," Matthews says, in a letter to Commerce Minister Simon Power.

In its own letter to Power, InternetNZ has called for the "changes" in the Patents Bill on software to be referred back to the select committee, with an opportunity for further input by "those who originally made submissions". Ironically, this would cut out NZICT, who did not make a submission. To get a representative point of view the committee may be forced to open submissions more generally.

One accepted way for a further amendment or clarification to be put through is by a supplementary order paper (SOP), produced in Parliament during a second or third-reading debate and voted on only by the MPs present

"SOPs can allow for useful improvements to the meaning of legislation, but they can also go horribly wrong," says InternetNZ policy director Jordan Carter.

"The debacle of the section 92A amendments to the Copyright Act in 2008, also involving last minute changes through SOP, show the importance of careful and public scrutiny of any last minute changes," he adds.

"A short delay of a couple of weeks would give the Committee time to assess any changes the Government may propose, and to work out in the bright sunlight of transparent scrutiny whether they meet New Zealand's needs," Carter says.

More about: Bill, IBM, IBM Australia, ICT Group, Microsoft

Comments

Dave Lane

1

Mark, strictly speaking, you're correct. However, your distinction fails to understand the underlying substance. These are not equivalent expressions of self-interest...

If I work to ensure that there is no legal prejudice against the sort of business I do, I benefit by ensuring a level playing field. Of course, everyone else enjoys the same freedom. I would argue that this is a ethical exercise of self-interest. The only ones who are disadvantaged by my self-interested efforts are those who previously enjoyed the direct benefits of favouritism.

If another person lobbies for a specific legal privilege that ensures only they can do a certain kind of business, to the exclusion of others, I would argue that their expression of self-interest is unethical: to advantage themselves, they're inherently disadvantaging others.

Lawrence D'Oliveiro

2

Every other field of human endeavour gets to choose to be "protected" via patents or copyrights, but not both. Why should software be the only exception, Why does it need <i>two</i> forms of "protection", when everybody else makes do with one?

Ken Moon

3

1. There is no such thing as a "software patent". Currently there can be valid patents in NZ for software inventions - software techniques which are new and non-obvious.
2. The blanket exclusion of software inventions from patentability proposed by the Select Committee is a world first. Not advisable for a small country, especially when the treaty on Trade Related Aspects of Intellectual Property Rights (TRIPS) Article 27 requires members to grant patents for inventions "in all fields of technology".
3. That the Committee thought including embedded software in was too hard simply shows ignorance. Europe has done this since 1977. Admittedly they stuffed it up initially, but have got it right now. NZ can adopt present EPC law and EPO practice.
4. IPONZ guidelines for embedded software inventions were never going to work. Guidelines can be changed on a whim. They are not binding on the courts. They didn't work at the UK patent office and they were supposed to be operating under European law designed (then badly) to allow patents for embedded software inventions.
5. The advice to the Committee that a total exclusion would not prevent patents for embedded software was simply wrong. They were prevented in the UK which did not operate under a NZ type total exclusion. They are prevented to this very day in Brazil despite adopting European law.
6. So what, if NZICT includes local branches of US companies. This is like saying there is something wrong with Fonterra talking to US trade representatives about changes in US law.
7. The Computer Society should do more research before speculating on what some Patent Offices in the real world do about granting patents for real world concepts. There is every reason to think IPONZ might exclude such inventions as disguised software. Better to get it clear in legislation.
8. Re the "democratic process" - where were the NZOSS and supporters in 2002 when the MED called for submissions on the patentability of software inventions when the patent reform process got underway? As to NZICT and others not submitting to the Committee, in the real world people who agree with a Bill (any Bill) don't usually make submissions. Submitters are people who want something changed. Fisher & Paykel Appliances was an exception. Just as opponents to software patentability emailed Committee members individually after the time for submissions had long closed then so will the other side attempt to lobby Government while the Bill is still before Parliament.

Matt Adams

4

Interesting article Stephen.

I don't think there is any point in changes being referred back to the select committee as InternetNZ suggests.

In its own submission InternetNZ submitted that "it is not currently possible to obtain a patent in New Zealand for software", referred to the disallowance of software patents in the European Union, and urged the Committee to pay close attention to the NZ Open Source Society for "detailed and credible arguments" as to why software patenting should be avoided.

The reality is that software is patentable in New Zealand and software is patentable in Europe.

The Patents Bill submission process attracted 3 written submissions from the NZ Open Source Society, according to Parliamentary documents. The first submission (21) favoured harmonisation with Europe. The second (21A) tabled an academic paper. The third (21B) was made well after submissions closed. It was sent to only 2 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".

In the first of its 3 submissions the New Zealand Open Source Society endorsed the Committee's decision to follow Europe. Arguing against alignment with Australia, the NZOSS stated that "the selection of AU patent law as an example of divergence is curious considering that Europe has taken the same stance as NZ. Therefore we are in fact implementing a patent approach that is well supported by some of our largest trading partners". The NZOSS urged NZers to "hold to our principles side by side with the European Union".

The New Zealand Open Source Society, supported by InternetNZ, knew that software was patentable in Europe going into the submission process. In its submission(s) it argued that the Select Committee should adopt European law.

I say let the Government and the Ministry of Economic Development officials get on and implement the changes NZOSS and InternetNZ asked for.

Dave Lane

5

The select committee heard the arguments, both for and against the exclusion of software patents. As Clare Curren reiterated at the OpenGov2010 "unconference", the Select Committee's recommendation, supported in a press release by the minister, Simon Power, states that software should be excluded from patentability. There is nothing unclear or ambiguous about this. There should be no software patents.

NZICT, Microsoft, IBM, etc. - if you wanted to gainsay this position, you should've made a compelling submission. You did not, and now you see how the democratic process works. If this position changes, it will be because of your secret, undemocratic influence.

As a kiwi, I will do whatever I can to avoid our democratic process being compromised to suit your self-interest - especially because it is *against* the interest of most kiwis and favours only your foreign shareholders.

Matt Adams

6

The New Zealand Open Source Society surely knew that computer software was patentable in Europe at the time it made its submissions to the Commerce Select Committee.

In suggesting to the Committee that "New Zealand could follow the European lead in patent law" it can only be expected that it knew what it was asking for.

In subsequent statements (http://nzoss.org.nz/news/2010/response-software-exception-patent-bill) the NZOSS endorsed the Committee's decision to follow Europe. Arguing against alignment with Australia, the NZOSS stated that "the selection of AU patent law as an example of divergence is curious considering that Europe has taken the same stance as NZ. Therefore we are in fact implementing a patent approach that is well supported by some of our largest trading partners". The NZOSS urged New Zealanders to "hold to our principles side by side with the European Union".

In March 2002 the Ministry of Economic Development published a Discussion Paper on the Review of the Patents Act 1953: Boundaries to Patentability. The document summarises some specific issues around patent reform and asks some specific questions. One of the issues summarised is what the document refers to as the patentability of computer software.

The Discussion paper covers the patentability of computer software in Europe. It states that the "exclusion from patentability of computer programs as such in Article 52(2) does not prevent the patenting of computer-related inventions." It concludes that "computer software is now patentable in the European Community, provided the software is directed to carrying out a 'technical process'."

The Paper is not particularly secret. It has been on the MED website for years. (http://www.med.govt.nz/templates/ContentTopicSummary____5876.aspx?&MSHiC=65001&L=0&W=boundaries+to+patentability+&Pre=%3cb%3e&Post=%3c%2fb%3e).

In June 2009 it appears that NZOSS Council member David Lane met with Commerce Committee chairperson Lianne Dalziel. Bevan Rudge's notes of the meeting commend Dalziel as being "well-informed about the Patents Bill, the Ministry of Economic Development's Patent Review and the insufficient attention paid to software patents (thanks to our emails and exchange of documents beforehand)". (http://civicactions.com/blog/2009/jul/05/nz_software_patents_meeting_lianne_dalziel_commerce_committee_chairperson_labour_mp).

Rudge records that Dalziel "was quick to point out an oversight in my research of the MED's review; A section from 2004, early in stage 3 of the review, that comprehensively summarises the issues of software patents."

The NZOSS did not participate in the MED's review. But the relevant documents were known to the NZOSS. These documents were painstakingly prepared by MED officials. The documents were brought to the attention of the NZOSS by one of the Commerce Select Committee members. The NZOSS was in a better position than many other submitters to know what was patentable in Europe.

DonChristie

7

Matt, your claims about NZOSS position on European patents have been made by others and clearly refuted. However, it may help you if I repost the relevant parts of Article 52 of the European Patents convention. I am sure you are familiar with para 2 c):

Patentable inventions

(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

So, the convention states one thing but the EPO Board of Appeal has done exactly what the MED is trying to do, allow software patents, despite the article clearly stating computer programs should not be patentable.

Matt Adams

8

As mentioned below, the Patents Bill submission process attracted 3 written submissions from the New Zealand Open Source Society. This number increases to 7 if you also include submissions made by individual NZOSS Council members and their companies.

Catalyst IT made three written submissions, according to Parliamentary documents. The first and second submissions (36 & 36A) claimed that software patenting would reduce innovation. The two submissions differed in the amendments requested by the company. The third (36B) was made after Catalyst IT made its verbal submission. It was sent as a letter to only Commerce Select Committee Chairperson Lianne Dalziel. The letter requested a meeting between the letter's author and Dalziel.

In the first 2 of its 3 written submissions to the Commerce Select Committee, Catalyst IT claimed that software development is held back when other entities "register patents for software processes many years after the original work, simply because no-one else has yet registered that work due to its freely available nature."

Wrong. Patents are granted for inventions that are new at the time the patent is filed. If the work is already freely available it is not patentable. If a patent is granted on an invention that is not new then it is not enforceable.

Catalyst IT does not address in its written submissions relevant changes effected by the Patents Bill such as the move to absolute novelty, examination for inventive step, examination on the balance of probabilities, and prior user rights. All of these measures reduce potential patent scope.

In its verbal submission to the Commerce Select Committee, Catalyst IT claimed that software patenting would reduce innovation. The submitters raised patent threats received around election systems and electronic voting as an example. Catalyst IT has been less than forthcoming with support for its position. Subsequent attempts to obtain even the patent number from Catalyst IT have been unsuccessful.

Good decisions and reasonable solutions are based on facts. Bad decisions are based on an absence of or an exaggeration of facts.

The argument about stifling innovation was pivotal in the decision reached by the Committee. The argument is quite rightly under scrutiny. Let's see some facts to support the argument. Starting with the election system patent threat.

After 7 NZOSS submissions I'm getting a little doubtful.

Dagan McGregor

9

Is it just me, or is it just the lawyers on here piping up in support of software patents?

If NZICT claims to support "90%" of NZ ICT companies, where are the heads of all these companies coming out in public support of software patent schemes?

Talk about self-interest, lawyers like to collect the huge fees they charge to keep software patents cases in court for as long as possible.

The comments here reflect the general consensus of the Select Committee findings - software patents are a bad idea, and the only people that like them are lawyers who make a living being litigious.

Ken Moon

10

Dave, you have switched ground. I merely wished to correct what I considered to be misleading comments about patent law made by a variety of people who have posted and who made submissions to the Select Committee.

Shifting to the economic justification for patents (and in particular patents for software inventions) is to be welcomed. This is the real issue. I recommended InternetNZ focus on this issue way back at the time I gave them and their members assistance in relation to the infamous DE Technologies business method patent. Unfortunately they did not.

The patent system exists to correct a flaw in classic free market perfect competition economics. As soon as an innovator puts his inventive product/process on the market competitors are free to copy without the same investment - whether of time, intellect or money. This was seen as a disincentive to innovation or investment in it. The patent system grants a temporary monopoly to inventors - who can secure patents - to allow them time to recoup investment and make a profit.

If there is economic evidence that the software industry, as as opposed to other industries, suffers a net detriment rather than a net benefit due to patents then NZ's current law would require investigation. No such evidence was presented to the Select Committee and neither its justifications for its recommendation nor any of the advice given to it by officials addressed the fundamental economic issue.

No data was given as to the increased costs of working acrss the industry since the law changed in 1995. No one gave evidence of being sued for infringement of a software patent, whether the patent was valid or not.

Mention was made of threats made by DET, but nothing came of those. In all technologies some bad patents slip through and that was one of them. The answer is to conduct stricter examination at the patent office. This is exactly what is provided for in the new Bill.

My arguments here, to the Ministry and at the Select Committee are aligned with one client, F&P Appliances, and the other NZ companies facing the same issues concerning protection of embedded systems. They do not accept that if you and your colleagues "deem software patents to be a net deterrent to innovation then the government has a duty to remove their market distortions". Especially when a large offshore competitor having reverse engineered the software providing market winning features threatens to introduce product incorporating that technology into NZ.

For companies developing embedded systems the economics are pretty clear - as the Select Committee understood, but failed to act upon. In this area software (plus a processor and interface of course) is directly equivalent to hardware. It would be ludicrous if the patent system forced manufacturers to choose more expensive and less flexible pure electronics rather than software if they were to a have any chance of obtaining a patent. Always assuming they had something patentable in the first place, that is, something new and non-obvious of as required by the new Bill and for that matter the current Act.

Matt Adams

11

The article mentions a Commerce Select Committee report issued earlier this month. If we are talking about the same report, this is probably the one issued earlier this year in March 2010. In that report the Committee states that it "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".

Where did this 'advice' come from? Did it come from the Ministry of Economic Development (MED)?

The report of advice from the MED to the Select Committee in October 2009 ("the October Report") records that the Committee wanted to restrict the "patentability of computer software while maintaining the patentability of so-called 'embedded software'" (para 26).

MED set out three options for the Committee. These are:
(a)*exclude all software from patent protection;
(b)*leave things as they are; or
(c)*adopt a hybrid UK/EPO approach.

The MED recommendations in the report are clear.

Option C was not the recommended approach. It is described in the report as far from ideal (para 57) and difficult to implement (para 59).

The MED suggested the best approach was to either (a) exclude all software from patent protection, or (b) leave things as they are. (para 53).

The MED document goes on to state that a blanket exclusion (Option A) would be relatively easy for the Intellectual Property Office of New Zealand (IPONZ) to implement and would leave no doubt as to what was intended (para 53). However, a blanket exclusion for computer programs would also exclude "embedded" software from patent protection in New Zealand (para 54).

It was then over to the Committee. The MED advice states that if the "Committee feels that it is essential to maintain the patentability of embedded software in New Zealand, it may be best to maintain the status quo" (para 54). This is Option B. In this case the Patents Bill "should not contain any explicit provisions regarding the patentability of computer software" (para 60).

If the Committee indeed received advice that excluding computer programs from patent protection would still allow the granting of patents for embedded software, then the October Report is not it.

The recommended approach, if the Committee wanted patents for embedded software, was Option B. Leave things as they are. No explicit provisions regarding the patentability of computer software.

This would not mean opening the floodgates. It would simply mean continuing to apply the existing clear set of guidelines as to what is patentable subject matter and what is not. The patentability of software in New Zealand has evolved over the last two decades through interpretation of the concept of "manner of manufacture" by Courts and Patent Offices in both New Zealand and Australia.

For reasons known only to the Committee it did not follow the advice of the October Report. It asked for further advice from the MED. Why did it do this? Was the advice wrong? Or was it simply because the Committee didn't like it?

The Committee received advice on all aspects of the Bill from the MED. In almost every instance the Committee followed the advice of the MED in preference to public submissions. Why did it pick this particular issue to depart from MED advice?

Perhaps it was the result of public submissions. If so, what guidance did the Committee receive from industry groups during the public participation process?

The New Zealand Computer Society (NZCS) did not participate in the process at all.

InternetNZ made a written submission misstating the law in both NZ and Europe and urging the Committee to pay attention to the New Zealand Open Source Society (NZOSS) submission.

The NZOSS and its Council member companies Catalyst IT and Egressive between them made seven written submissions. The NZOSS argued for alignment with European law. It is now becoming apparent that the NZOSS did not know what that meant, and did not bother to find out. Despite this inexcusable lack of preparation, were the submissions from industry groups InternetNZ and NZOSS so compelling that the Committee felt it could not follow the MED advice in the October Report?

Anonymous

12

In my earlier post below I mentioned the MED October Report to the Commerce Select Committee. The October Report does not support the Committee's view that it received advice that excluding computer programs from patent protection would still allow the granting of patents for embedded software.

The October Report set out three options for the Committee. These are:
(a) exclude all software from patent protection, including embedded software;
(b) leave things as they are; or
(c) adopt a hybrid UK/EPO approach.

For reasons known only to the Committee, it asked for a further briefing on the issue of the patentability of computer programs. This resulted in the Supplementary Report to the Commerce Select Committee in January 2010 ("the January Report"). The Committee still supported some restrictions on the patenting of software, while retaining the patentability of "embedded" software.

At the request of the Committee, the MED prepared the January Report that looked at two possible approaches. These are:
(a) allow patents on embedded software & exclude all other software; or
(b) exclude computer programs from patent protection.

Option A in the January 2010 report was not the MED preferred option. There is no simple definition of "embedded" software that could be incorporated into the Bill. IPONZ would not be able to make use of case law or practice developed elsewhere. The MED found that "there is no simple definition which exactly captures the idea of 'embedded software' or 'embedded systems'". Devising a simple definition would "likely be difficult, if not impossible". Technical advances may "mean that any definition fixed in legislation becomes obsolete fairly quickly". No other country has attempted to make the distinction between "embedded" and "non-embedded" computer programs in patent legislation.

MED made it clear that Option A was certainly not the MED preferred option.

Remember that the MED preferred option was to leave things as they are, as stated in the October Report. When pressed by the Committee, it came up with the next best thing.

Option B in the January 2010 report suggested an exclusion from patent protection for computer programs, "the wording of the exclusion being similar to, or the same as, the exclusion for computer programs contained in the EPC and the UK Patents Act." The MED report stated that "IPONZ has indicated that if such an exclusion was provided, it would use EPO and UK case law and practice to interpret the exclusion".

The report went on to state that "despite what appears to be a 'blanket' exclusion, the EPO and UK courts have ruled that some types of computer programs can be patented. In general, if an invention involving a computer program possesses a 'technical character' it will be patentable."

Option B was the MED preferred option of the two options in the January 2010 report.

This option is the only option that can be sensibly reconciled with the statement in the commentary to the Patents Bill that 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." Option B is the only option that makes sense.

It is clear that the Commerce Select Committee chose Option B (European law) from the January 2010 report. However, the wording of the exclusion proposed by the Committee does not reflect the intention of the Committee to follow European law.

I said it earlier and I say it again. Let the Government and the MED get on and implement the changes. The fact that there is any statutory restriction on patenting software at all shows a flaw in this lawmaking process.

Both InternetNZ and NZOSS argued for European law. Both groups knew or should have known what that meant. It is not enough for these groups to now turn around and say they thought they were arguing for a blanket exclusion. This is simply not acceptable.

Sometimes, vigorous but inept lobbying can get you what you ask for, but not what you actually want.

Matt Adams

13

Stephen,

Thanks for publishing this thought provoking article. I have appreciated the opportunity to make some fact based observations on:
(a) the absence of a New Zealand Computer Society (NZCS) submission
(b) the InternetNZ submission
(c) the New Zealand Open Source Society (NZOSS) submissions (NZOSS, Catalyst IT, Egressive)
(d) the Ministry of Economic Development (MED) October Report
(e) the MED January Report

I don't seem to have provoked many sensible comments in reply. I guess it is time to move on. However, looking again through the comments, something strikes me as a little odd.

Most of the comments come from David Lane (NZOSS Council member), Don Christie (current NZOSS president) and Peter Harrison (founder of NZOSS, immediate past president and current vice-president).

All of these individuals to one extent or another assure me that the NZOSS is against software patents.

David Lane points out that "NZOSS does not want software patents. At all. Anywhere. And especially not in NZ."

Don Christie says, on behalf of the NZOSS, "when we argue now that computer programs, whether actually executing on your PC or sitting on a print out, should not be patentable#that is what we mean".

The most vocal champion of the anti-software patent stance is Peter Harrison. He states that he "made the decision to start the NZOSS and work for freedom from software patents out of a sense of justice for New Zealanders; to support our IT industry. This isn't about supporting only Open Source, it's about protecting NZ from the kinds of protectionist abuse common in the US".

Does anyone else find it a little odd to see Peter Harrison as a software patent applicant?

Intellectual Property Office of New Zealand (IPONZ) records show that Peter Harrison filed New Zealand Patent Application 550451 in October 2006. The title is "Method for the automatic collection of employee income tax". Only bibliographic details are published by IPONZ. The subject matter is known from the category assigned to the invention by IPONZ. The subject matter relates to "digital computing or data processing equipment for methods, specially adapted for specific applications." In other words, a computer-related patent application. For simplicity I'll call it a software patent.

Is this the same Peter Harrison? If so, what's the story?

Is it a case of do as I say not do as I do? Why should the founder of the NZOSS be able to file patent applications for computer-related inventions in New Zealand and still insist that others can't? How is this providing "freedom from software patents out of a sense of justice for New Zealanders?"

Or is it simply recognition and acceptance that open source software and patent protection are not incompatible? Surely they are not mutually exclusive if the founder of the NZOSS indulges in both.

Personally I have no problem with individual groups taking an anti-patent stance. Assign whatever label you want to it. Call it a hobby, campaign, movement, struggle, battle, belief, religion, cause, crusade, jihad, doctrine, dogma, creed, faith. Whatever.

Similarly I have no problem with individuals filing patent applications for software-related or computer-related inventions.

But Peter Harrison simply can't do both. He can't set up a group that he now says has an anti-patent stance when he is a patent applicant himself. It simply doesn't work.

I'm comfortable with the media, lawmakers and the general public looking to the NZOSS for comment on the promotion of open source software in New Zealand. But the NZOSS simply has no credibility when commenting on patent law reform.

The media reports that NZOSS is doing a good job getting open source software on public sector desktops. Maybe that's where the NZOSS should continue to focus its efforts. It could do better. Perhaps it needs more moderate rather than militant champions. A topic for the upcoming NZOSS AGM surely.

Dave Lane

14

To me it's telling that the only pro-software patent representatives are neither software developers (they're patent lawyers) and they're attempting (and failing) to besmirch the credibility of the many grass-roots organisation opposing software patents.

I find it interesting, also, that a survey of the comments below shows that almost all of the pro-software patent comments are posted by anonymous posters. Or perhaps it's just one anonymous poster. Who knows.

The obvious question: where are the outspoken pro-software patent software developers?

*crickets*

Really, only the (so called) NZICT and its multinational corporate masters support software patents. Oh, and AJ Park, who I'm sure are participating in this forum on principle, not as mercenaries. Heh. Yeah right.

JackR

15

Trouble is that software patents still exist elsewhere and one of the benefits of a NZ patent is that it can give you priority in a foreign jurisdiction, especially if you subsequently apply for a US patent. Having such a patent makes it far less likely you'll face a patent infringement jury trial when you start doing well in the US.
My questions would be:
1) How much of the opposition is FUD? IOW how many NZ firms actually have been sued over a stifling or frivolous NZ patent in real life? It happens a lot in the US but there are other factors there, such as the fact that courts rarely award legal costs so there's no disincentive for a patent troll to sue and sue, confident that people will settle to avoid the nuisance and legal expense. NZ Courts do award legal costs and damages, especially for really daft claims.
2) By comparison, how many NZ firms have come up with great innovations that got scooped by other vendors because the inventor did not protect their IP? This isn't limited to kiwifruit, it happens in software too.
3) We hear quite a lot from NZ firms who haven't been awarded any software patents. There can be many reasons for this, but before we go there, what about firms who have secured a NZ software patent and/or who used it to achieve priority elsewhere in the world? Have we heard from any of them? Are there any?

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