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New Zealand Patents Bill 235

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In New Zealand, Patents Bill 235 is a legislation, adopted in August 2013, which mostly excludes software from patentability.

IBM and Microsoft had a lot of influence in making the law worse, but didn't succeed in stopping it from abolishing some software patents. The proposal was launched in 2008.

Contents

[edit] Summary

The proposed Patents Bill affects the whole NZ patents system. Regarding software, it will introduce unlimited software patenting. It will almost certainly go through since it is considered both necessary and overdue. The issue was that the implications it has on software had not been sufficiently considered or discussed.

[edit] Who's lobbying for software patents

A leaked email and a collection of documents published by the government in response to an Official Information Act request shows that the pro-swpat lobbying is down to four entities:[1]

[edit] Who's against software patents

The following is just the list of consortiums, larger companies, and public interest groups. A much longer list could be compiled if we added each individual NZ company that was against software patents.

  • Institute of IT Professionals - a poll of 1000 of their members found 94% against software patents[3]
  • NZCS[4] From a recent survey, 80% of their members were against software patents[5]
  • NZOSS (nzoss.org.nz) - members of which wrote letters which lead to the government recommending abolition of software patents
  • NZRise[6]
  • Orion Health[7]
  • Jade Software Corporation[8]
  • InternetNZ[9]

Paul Matthews of the Institute of IT Professionals comments "As I understand it, Orion and Jade together represent around 50% of New Zealand's software exports".[10]

[edit] History

This bill is the culmination of a review of the Patents Act 1953, which was started in August 2000.[11] The bill intends to completely replace the old Patents Act (1953). As part of the review, initial submissions from the public were sought in 2002. The Ministry of Economic Development's website hosts a summary of those submissions, including a section on Business Methods and Software, in which it seems only 14 submissions commented on software, and mostly only corporates, including Telecom NZ. Many of those few submissions were in favour of software patents, however about half "were against mere schemes or plans, mathematical algorithms and other abstracts concepts being patentable, although suggestions varied on how this could be best achieved within the Act.".

Judith Tizard introduced the proposed act to parliament in 2008. Tizard also introduced S92 copyright law amendments (provoking the Internet Blackout in February). Tizard stated in 2005 in stage 3 of the review that "Concern has been expressed in some quarters that allowing patents for business methods and software may in fact stifle innovation in these fields, rather than encourage it, and that business methods and software should not be patentable at all. There is no evidence, however, to support such a concern. [...] There are, then, no strong arguments for specifically excluding business methods and software from patent protection. In light of this, I consider that business methods and software should continue to be patentable as long as they meet the requirements for patentability." Which is clearly a very poorly informed recommendation.

It seems that stage 3 of the review may have also handed the responsibility of this part off to a Select Committee: "11. Submitters raised a number of policy issues. Most of the issues raised were of a nature that would be best dealt when the Bill is considered by a Select Committee. These issues included; ... 2. The patentability of computer software and business methods;":

At the first reading on 5 May 2009, the party votes were:

  • Supporting: National, Labour, ACT, Progres., United F, totaling 107 votes.
  • Not supporting: Green, Maori, totalling 14 votes.

Kevin Hague (Green MP) – the only MP to mention software in the first reading – points out that "the 20-year duration of patent coverage may be reasonable for a new mousetrap, but is effectively forever for a software idea". Kevin Hague is against software patents.

The Commerce Committee of the Parliament was inviting comments on the fill till July 2. The hearings, including the oral submissions, are over.

The commerce committee have recommended to parliament that software patents be excluded in the new patents act in section 15. This recommendation and the patents bill is yet to have a second reading in parliament, but is well on it's way to being passed as law.

[edit] Versions

(newest first)

[edit] 9 May 2013

The 9 May Supplementary Order proposes a weak and confusing exclusion of software patents. The most redeeming factor is that it is followed by an example which says that data processing on a computer is to be excluded. (Can you help? Does the example have legal weight? See https://www.gnu.org/philosophy/limit-patent-effect.html for an approach. )

10A Computer programs
(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.

[edit] 28 August 2012

Government documents about the 28 Aug 2012 change:

The proposal is now going into "Second reading", where it is mostly in the hands of the Minister.

[edit] Submissions

There is also a supporting thesis by Joel Wiramu Pauling. The content of a draft is publicly available. The text of the final version may become available if all submissions are published (do they?). In the mean time, there is a version for sale.

[edit] Articles

[edit] The written law

Section 13 defines what is patentable, and sections 14 and 15 defines exclusions.

(The words in bold with serifs are terms that are defined by the bill. The words in bold without serifs are references to other parts of the bill.)

Note that inventions must be "a manner of manufacture" in the new law. However this is not sufficiently precise so as to unambiguously include or exclude software, as noted by Guy Burgess, solicitor.

[edit] April 2010 notes

2nd April 2010: Success! The commerce committee has recommended "Computer software" be excluded from patentability. HTML PDF.

IMPORTANT: It is still possible for parliament to override this after the second reading , which is uncommon and not likely but it has occurred before (s92a copyright ammendments) and should be monitored closely. The date of the second reading is not yet known.

Articles about this win:

[edit] External links

[edit] Third-party pages about The Patents Bill

[edit] The 28 Aug 2012 u-turn

There may be useful ideas or info in the comments of these stories:

[edit] References

  1. http://lists.endsoftwarepatents.org/archive/html/nz-public-discuss/2012-08/msg00000.html
  2. http://davelane.name/blog/dave/nzict-unwarranted-influence-software-patents NZICT
  3. http://computerworld.co.nz/news.nsf/news/opinion-has-the-minister-wheedled-the-software-patent-exclusion
  4. "It's official: Software will be unpatentable in NZ". http://www.nzcs.org.nz/news/blog.php?/archives/97-.html. "...on balance, we believe they represent a far greater risk to smaller NZ-based software providers than opportunity, and there are many cases where they have significantly stifled innovation." 
  5. "NZCS lobbies to end patent protection for software". http://computerworld.co.nz/news.nsf/news/nzcs-lobbies-to-end-patent-protection-for-software. "The move comes after a quick poll of NZCS members, IT professionals from around New Zealand, found 80 percent opposed patent protection for software." 
  6. http://fairdeal.net.nz/2012/07/nzrise-software-patents-and-the-tpp
  7. "Orion Health backs moves to block patents". http://computerworld.co.nz/news.nsf/development/orion-health-backs-moves-to-block-patents. "Ian McCrae, CEO of Orion Health, which claims to be New Zealand’s largest application vendor, supports a Commerce Select Committee proposal to rule out software patents in New Zealand. The negatives of a patent system outweigh the positives, he says. “Obvious things are getting patented. You might see a logical enhancement to your software, but you can’t do it because someone else has a patent. It gets in the way of innovation.”" 
  8. "email sent to journalist". http://www.iitp.org.nz/news/archives/1818-It_s_official_Software_will_be_unpatentable_in_NZ. "Jade Software Corporation does not support patents related to software. Reflecting this position we withdrew from applying for patents a number of years ago. We believe the patent process is onerous, not suited to the software industry, and challenges our investment in innovation." 
  9. http://internetnz.net.nz/our-work/submissions/submission-commerce-committee-patents-bill
  10. http://www.iitp.org.nz/news/archives/1818-It_s_official_Software_will_be_unpatentable_in_NZ
  11. http://www.med.govt.nz/templates/ContentTopicSummary____5876.aspx


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