A private members bill introduced by National Party spokesperson for Science and Innovation Parmjeet Parmar, which proposes a second-tier patent system, has raised fears that the issue of ‘software patents’ is back on the agenda.
The Patents (Advancement Patents) Amendment Bill seeks to introduce a second tier system to make patents easier and less costly to obtain and “require a lesser advancement in order to be granted than the inventive step required for other kinds of patents”. It would also provide a shorter term of protection – the proposal being 10 years instead of 20 years.
When asked by Computerworld if her proposed bill was seeking to include software patents, Parmar replied: “The advancement patent is proposed to apply to the same subject matter permissible for a standard patent. Section 11 of the Patents Act which applies to Computer Programs is amended to insert “or advancement’ in there which actually clarifies that the Section is applicable to advancement patents too.”
That section, which defines ‘computer program’ is outlined in the Patents Act 2013 as follows:
(1) A computer program is not an invention and not a manner of manufacture for the purposes of this Act.
(2) Subsection (1) prevents anything from being an invention or a manner of manufacture for the purposes of this Act only to the extent that a claim in a patent or an application relates to a computer program as such.
(3) A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.
IT Professionals (ITP) led a campaign to get software removed from patentability and in a newsletter to ITP members, CEO Paul Matthews expressed fears that they could be headed for a repeat of the same battle.
“While we remain open-minded until we’ve analysed the details and discussed it with Dr Parmar and others, on the face of it the whole idea does sound like something out of a horror film for our industry, especially if software isn’t excluded,” he says.
ITP objects to software patents because it claims that the time frame is too long (even if this was reduced from 20 to 10 years) in the tech industry when innovation moves so fast. Matthews points out that 20 years ago Netflix was a small-time DVD mail order company and Google hadn’t been invented (until September this year).
Software patents have also, according to Matthews, been granted for “minor advancements built on prior work and often for things that really are obvious.” He cites the example of Amazon being awarded a patent for ‘one-click’, that is storing customer and credit card details and letting customers buy without having to re-enter them.
The trouble then begins when companies start defending patents, or when the issue of patent trolls arises. “Law firms that get hold of patents and, with no intention of actually doing anything productive with them, spend their days suing innovative tech companies for technical patent breaches,” Matthews explains.
Meanwhile Parmar says the Patents (Advancement Patents) Amendment Bill has been drafted after taking into account experience from European countries and Australia, and she will be seeking cross-party support for the bill.
“It is worth noting that there is a recognised gap created by the Patents Act 2013, one which needs to be urgently filled to restore the confidence of New Zealand businesses, especially those small to medium enterprises whose small incremental advances are so vital to New Zealand’s on-going technological development and that is what my bill proposes to do,” she told Computerworld.