Opinion: Has the Minister 'wheedled' the Software Patent exclusion?

In a poll of more than 1000 members of the Institute of IT Professionals, 94 percent supported its stance opposing software patents, CEO Paul Matthews says

After a hiatus of more than two years, software patents were thrust back into the limelight recently when the government finally announced the second reading of the long languishing Patents Bill.

Those who follow such things will remember the Bill was reported back from the Commerce select committee in 2010. Following detailed consideration of all the issues, the select committee had unanimously recommended that software be excluded from patentability.

While praise wasn’t entirely universal, the news was welcomed at the time by many in the industry including most software and ICT groups, New Zealand’s largest software exporters Orion and Jade and many others.

Indeed the view of the kiwi ICT community is fairly clear on this one. The latest example is last week’s Institute of IT Professionals poll where a resounding 94 percent of IT Professionals with a view favoured the Institute continuing to oppose software patents. Yes, 94 percent. And not a small poll either – over 1000 of our members responded.

So why do so many oppose software patents? One reason is that the last few years of software-patenting decisions means it’s now simply not possible to write software today without breaching patents. Many believe software patents represent the biggest threat to our profession since Turing kicked things off at Bletchley Park, as do the patent trolls; lawyers who increasingly make a living out of gaining patents on obvious things and suing successful technologists.

Another reason is the total unsuitability of the patent system to software. Imagine if Mary Shelley was able to patent the concept of a horror novel when she wrote Frankenstein, preventing all future horror novels that might compete with hers. It wouldn’t matter that Frankenstein was inspired by prior gothic novels such as The Castle of Otranto from 1764.

Like software, book genres and plot “inventions” are built on those that came before them. Allowing someone to take this prior work, box it up differently then gain monopoly rights preventing others from doing the same does nothing other than stifle innovation. Like with books, copyright does the job for software.

However the debate has moved on from whether software patents are good or bad – we’re close to consensus on that and even the politicians agree; the decision of the Commerce select committee to finally get rid of software patents in New Zealand was unanimous – every party in Parliament supported it.

Which is why what’s happened over the last month or so has raised more than a few eyebrows. While announcing the Second Reading of the Patents Bill, the Commerce Minister Craig Foss also stated he was putting forward an amendment to the wording around software patents. Uh-oh.

The new wording, put forward via a Supplementary Order Paper (used by an MP to indicate an amendment), matches the European Patent Convention wording which determines patent eligibility in Europe. It states that computer programs as such are not patentable.

These two words ‘as such’ are more important than you might think. They’re kind of like the two words you might find on a Tui billboard. Following decades of legal wrangling in Europe, the European Patent Office (which is responsible for – and makes money from – the issuing of patents) determined that those two words basically mean that while computer programs as such aren't patentable, anything that is implemented in or by a computer program is. Say what?

During the second reading of the Patents Bill in Parliament Minister Foss stated “There has been no change to the select committee’s intention that computer programs should not be patentable” and repeated four times that under the SOP, a computer program will not be patentable. Four times.

So will the ‘as such’ wording mean that software can’t be patented in New Zealand as the minister apparently believes?

The patent lawyers certainly don’t seem to think so.

In commentary in the Law Society’s LawTalk magazine Barrister Clive Elliott writes that the proposed exclusion of computer programs “has been scrapped” by the minister’s SOP which “restores the status quo”.

A prominent IP lawyer Andrew Brown QC has written that the SOP “will effectively allow patentability of computer programs”. Attorney Doug Calhoun states that with the SOP there is “no real change in the law” and IT lawyer Guy Burgess states that the wording “fails to exclude software patents”.

In fact other than the minister’s advisers, we can’t find a single patent expert or lawyer who thinks the minister’s ‘as such’ wording will actually mean software is not patentable. We were also easily able to compile a sample of 150 seemingly pure software patents granted in Europe over the last 12 months under this wording and the number is likely far higher – some say as high as 30,000.

So has the government buckled under pressure from the US and decided to backtrack on the unanimous decision of the select committee? Do they now support the patenting of software against the wishes of the vast majority of the kiwi software industry?

If so, we wish they’d just come out and say so.

Or have they simply stuffed up by suggesting adopting wording into law that has been proven overseas to have the exact opposite effect of what they intend?

As LV Martin used to say, it’s the putting right that counts. Circumstances change and the implications of the European decision from 2010 is only really becoming clear now. If it’s a stuff-up it’s easy to fix, minister. Simply remove 10A(2) and we’ll all sing your praises from the rooftops.

Matthews is chief executive of the Institute of IT Professionals NZ

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