Aptimize to file patents in race against exclusion Bill

Local firm makes move as end of software patents looms

Web efficiency developer Aptimize is seeking worldwide patents for more of its software. This will include filing for New Zealand software patents as long as these are still available, says CEO Ed Robinson.

Aptimize applied for its first local patent in mid-2008 and had it granted towards the end of last year. The protection “gave us breathing room” to further develop the company’s products, secure in the knowledge they would not be imitated, Robinson says.

Aptimize’s products have been adopted internationally by companies including Google and Disney and, in this country by TradeMe, Mainfreight and Zespri.

“We are developing other [software] involving some new techniques, again around accelerating the internet,” says Robinson, with patent applications also planned on these developments worldwide.

Planned amendments to the Patents Act, currently at second-reading stage in Parliament, will, if passed unchanged, remove the right to patent most software in New Zealand.

There is an exception for software that produces a physical effect in, for example, a piece of machinery. This will still be patentable. Guidelines produced by the Intellectual Property Office of NZ late last year may still accommodate software that improves the operation of the computer itself. Aptimize’s products fall squarely into this disputed territory of computer performance enhancement.

However, as the effect of a new Patents Act will not be retrospective, any patents filed before the date the new law comes into force will, if granted, protect the software for another 20 years.

Aptimize, Robinson confirms, contributed to an effort last year led by the NZICT Group – long after the period for submissions on the Bill had expired – to lobby MPs on the Commerce Select Committee to remove or modify the software exclusion clause. This was unsuccessful against a lobby arguing that patent protection handicaps the healthy process of building on previous innovation. by which the ICT industry progresses.

Patents help protect an invention against imitation and also add value to the technology from the point of view of an investor, Aptimize’s Robinson says. If intellectual property is adequately protected, it is more likely to attract investment to aid its further development and marketing. “At the end of the day a patent is an asset” more secure than the brains and skills of development staff, who may leave, he says.

New Zealand needs a strategic approach with patents, Robinson says, aligning its law with that of its major trading partners. The present form of the bill seems to be angling New Zealand patent “towards the way the UK does it” and this may not necessarily be the best approach.

“At the moment, the challenge is that these decisions are being made without full understanding,” he says.

On Parliament’s Order Paper for February 15, the Patents Bill second reading debate stands at No 38, suggesting the Bill will not be passed for some months.

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