Software exclusion dominates second reading patents debate

The ban on patents for software and rival re-wordings of the pertinent provision dominated the second-reading debate of the Patents Bill in Parliament yesterday

The ban on patents for software and rival re-wordings of the pertinent provision dominated the second-reading debate of the Patents Bill in Parliament yesterday.

Bill sponsor Commerce Minister Craig Foss has put forward a Supplementary Order Paper (SOP) with an amendment inserting the qualification “as such” to the simple statement in the current version of the Bill, “a computer program is not a patentable invention.”

Opposition ICT spokesperson Clare Curran accused Foss of “stuffing up” the products of Kiwi ingenuity in the software industry with his SOP.

Curran renewed her call to know “where the wording of that SOP came from”.

Opposition MP Lianne Dalziel, who was chair of the Commerce Select Committee when much of the work on the Bill was done, suggested the wording of Foss’s SOP was influenced by similar multinational software lobbies to those that steered the infamous meeting in June 2010 between government officials and representatives of multinational – as well as some local - software companies after the Commerce Select Committee had reported back on public submissions.

There should have been wider consultation on the latest amendment, said Curran. If current Defence and State Services Minister Jonathan Coleman had been commerce minister, said Labour member Clayton Cosgrove, he would have been more in agreement with the Select Committee’s original stance and consulted more widely before “firing a torpedo into the Committee’s consensus.”

Curran has tabled her own SOP, reflecting the anti-software patent petition of the past week, which attracted 1078 signatures in a few days. Curran’s amendment removes the phrase “as such” and specifies – much more clearly, she says - that the software exclusion “does not prevent an invention that makes use of an embedded computer program from being patentable”.

An embedded program is one that controls a physical piece of machinery.

Curran succeeded at her second attempt to have the anti-software-patent petition itself tabled in Parliament; her first attempt met with an objection.

Labour’s Lianne Dalziel and Trevor Mallard referred to the fact that former chief executive of industry association NZICT, Brett O’Riley, who was involved in organising the 2010 meeting, is now working for the Ministry of Business, Innovation and Employment.

Reminded by a note from a colleague and a tweet from Computerworld that O’Riley was in the Ministry of Science and Innovation part of MBIE, not the Ministry of Economic Development part, Mallard backed off from his belief that O’Riley might be responsible in future for vetting patents.

“I tried to correct when passed note. I was wrong.” Mallard tweeted in response to this reporter.

“To be fair that wasn't the point,” Curran tweeted back. “[The point] was that there was a back-room deal done on the Patents Bill.” Foss’s amendment, she said, would give the pro-software-patent lobby more even than they hoped for after the 2010 meeting.

The House rose for dinner at 6 pm and when it reconvened at 7:30, there was a minute and a half of debating time left. Mallard used this to quote Xero design head Philip Fierlinger as saying the company has not sought patents for its products because “we welcome competition” and appreciates the ability that a patent-free software business gives Xero to “stand on the shoulders of giants.”

Parliament’s final order paper for today places the next step, the Committee stage of the Patents Bill, at No. 13 in the order of business. This will make further debate this week unlikely.

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