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.

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