Open source activists target software patents

Local software developers urged to make their views known

Open-source champions are pushing to eliminate software patents from New Zealand through a Patents Bill now at the select committee stage in Parliament.

Such patents have been accepted by default for many years, but this is damaging to the software industry, which subsists to a great extent on adapting and including the ideas of previous inventors, says New Zealand Open Source Society president Don Christie.

Protection of an idea is far more broad and, therefore, potentially more damaging than copyright protection, which only restricts the specific expression of an idea, says Christie.

NZOSS past-president, Peter Harrison, who has taken on the bulk of the society’s work on the patent issue, points to the “ridiculous” breadth of the protection that might result.

Microsoft, for example, attempted to patent the general idea of including XML in a word-processing document, which, given that XML is an open standard pertaining specifically to documents, is potentially damaging to a large part of the software industry, Harrison says. The company’s subsequent patent application on that front was only marginally more specific, he says.

Deadline for public submissions on the bill is July 2 and Christie is urging local software developers and other stakeholders to make the anti-software-patent view known.

The preamble to the Bill holds out the prospect of further attention to the issue software patentability.

The regulatory impact statement prefacing the Bill says the Labour-led Cabinet, in August 2001, agreed to “a three-stage review” of the Patents Act 1953.

“The proposals discussed in this regulatory impact statement are part of Stage 2 of this Review,” it says. “Contentious issues, including …computer software and business methods, will be dealt with in Stage 3 of the review.”

However, the Ministry of Economic Development says the third-stage review has already been completed and software patentability stands.

“The Bill incorporates the outcomes of all three stages of the review. The issue of software patents was considered as part of the third stage, but a decision was taken not to exclude software from patentability,” says an MED spokeswoman.

The regulatory statement’s summary of the third stage of the review, however, makes no explicit reference to software. It deals in detail with innovations pertaining to human medical treatment and to animals and with specific Maori concerns, but software is not mentioned again.

Also, despite the reference in the regulatory impact statement to the need to consider software, the Bill itself does not once mention the subject, leaving validity of software patents to be inferred.

Harrison suggests that accepting software patents, even tacitly, represents a capitulation to the view of United States authorities, and abandons a potentially powerful weapon in negotiations towards a New Zealand-US free trade agreement. Similar points have been made on the copyright and music-piracy fronts.

Open source software is built on free exchange and reuse of code, but the potential damage is not limited to that realm, says Harrison. Even proprietary software development is handicapped if it cannot use an idea that someone has already patented.

There are grounds of challenge to a patent on the ground that it is “obvious” or where the innovation can be shown to have been put into practice before the application (“prior art”); but defence is a matter of resources, says Harrison and NZ developers would be in a relatively weak position against a large US-based company.

The acceptability of software patents was effectively enforced by a small change in legislation from the US Patent Office in the 1990s, says Christie, and the question has never been properly debated.

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