Software patents - left vs right again?


The software patent debate is opening old sores associated with the change of government and government’s interface with the ICT industry.

A question that runs through or subtly underlies comments on the controversy in several online forums, is to what extent the NZICT Group represents New Zealand’s ICT industry and customers.

The Labour-led government set up the Digital Development Council (DDC) and Digital Development Forum (DDF) as an umbrella for ICT developer and user communities – TUANZ, InternetNZ, the NZ Computer Society and so on.

The idea was a single focus group for government and ICT to speak effectively with each other. The organisation representing predominantly multinational manufacturers – destined to become the NZICT Group — was considered simply one more potential member of the DDC.

With the election of the National-led government all that was swept away. ICT Minister Steven Joyce said that government had good enough contacts with the separate ICT organisations it wanted to talk to. NZICT achieved a new ascendancy. To be fair, it has some exclusively New Zealand-based members.

In trying to be neutral in reporting on software patents, I have been taken to task for suggesting that NZICT represents the local industry.

As one attendee at the OpenGovt2010 conference reminded me, NZICT represents suppliers, not customers, or as he put it, “the demand side”.

The software patents debate pitches the open-source enthusiasts against the champions of proprietary software and there are mutterings about closed-door meetings versus open, inclusive processes. I don’t think it is drawing too long a bow to see in this another facet of the DDC versus NZICT switch.

That, in turn, will be seen in some quarters as merely another expression of the contrast between a business-friendly government and one that listens to a broader cross-section of society. I think that’s simplistic; all governments of whatever claimed political stripe, are necessarily friendly to businesses, including international businesses, which keep a large part of this country’s economy running.

Similar opposing lobbies are evident in the copyright debate; international business versus individuals and small organisations; the champions of openness and reuse versus those who would draw boundaries around knowledge and see it as personal territory and a saleable commodity.

That said, the distinction between patentable and non-patentable inventions is not a simple one. The recent US Supreme Court’s Bilski vs Kappos decision refers to the “transformation test” – that an invention is patentable if it is associated with a machine and “transforms a particular article into a different state or thing”. If you acknowledge the computer itself as a machine or thing, and this sounds like a definition of what a program does – all the way back to Alan Turing’s work in 1937.

If you insist that the machine altered be a separate machine, some bright spark will set up one virtual machine to modify the operation of another while they both run on the same real server.

In this world of “virtual machines” is there a clear distinction between a mechanism and a program? NZCS CEO Paul Matthews suggests there is in his letter to Commerce Minister Simon Power in April supporting the removal of patentability of software in the Patents Act.

I am fascinated by Matthews’ definition of unpatentable software as “a separate concept from the physical world”.

Software entirely separate from the physical world wouldn’t have much hope of running. And some heavyweight philosophers would say “Mr Matthews, what is this ‘physical world’ of which you speak? Show us evidence of it which is not, in the last analysis a matter of language and notation – just like a program.”

“Software patents” will not be an easy problem to solve.

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Tags software patentsNZICTDigital Development Council

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