The government has asked for an urgent briefing on issues surrounding software patents in New Zealand.
Associate IT minister David Cunliffe says he has already received preliminary advice from officials. He will be discussing the matter with colleagues “over the next week or two”, he says.
Cunliffe says he wants to assure the IT industry that the government is looking at patents legislation, but he won’t comment specifically on the e-commerce patent held by North American company DE Technologies.
DE Technologies has sent letters to a number of New Zealand developers and online retailers, alleging patent infringement and demanding licensing fees.
Businesses that have received the patents should get legal advice, Cunliffe says.
He denies any U-turn by the government. “What I’m saying is that I think there’s a general policy issue that I think the government should consider.”
Cunliffe says the government would be unlikely to pass retrospective legislation that would affect patents that have already been granted.
However, there are other controversial patents before the patent office, including applications from US companies Amazon.com and Priceline.com. Cunliffe says he’s heard of those and will be asking if there are others.
Some local retailers and developers have grouped together to co-ordinate opposition to DE Technologies’ licensing claim. A common theme is disappointment that the patent was granted in New Zealand.
“It just seems unbelievable that a country could grant a patent so open-ended,” says e-tailer Kristina Cope.
Patents are often secured in the US for defensive purposes, to protect a company from potential patent suits. However, both Amazon.com and Priceline.com have demonstrated a willingness to use their patents aggressively against a competitor.
Because both patent cases were settled out of court, neither has been overturned in US courtrooms. New Zealand firms are unlikely to have legal resources Microsoft and Barnes & Noble were able to offer in their defence.
Both Amazon.com and Priceline.com are being represented by AJ Park, the same law firm InternetNZ commissioned last week for an opinion on DE Technologies’ patent claim.
Peter Macaulay, InternetNZ’s executive director, says AJ Park’s opinion is expected soon, and he expects to publish it on the InternetNZ website.
Patents like DE Technologies’ “devalue” true innovation, Macaulay says. “It’s protecting stuff that they didn’t have a right to have protected.”
Macaulay says its clear the patent office is allowing software patents, but says it’s a mistake.
“We know they’re allowed, but why are they allowed? I can’t see a defensible reason for having these things patented.”
Asked what InternetNZ would do if the legal opinion said DE Technologies’ patent was valid, Macaulay said the internet community in New Zealand would need to work together. “We need to overturn the patent. All the parties involved need to chip in.
“The second thing we need to do is to change our patent law.”