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(Added submission)
(Updating a number of details based on info garnished from meeting with Commerce Committee Chairperson, Lianne Dalziel)
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==The proposed Patents Bill 2009==
+
==Patents Bill 2009==
 
===Summary===
 
===Summary===
This is a proposed Patents Bill that would affect the whole patents system.  Regarding software, it will introduce unlimited software patenting.
+
The proposed Patents Bill affects the whole 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 is that the implications it has on software has not been sufficiently considered or discussed.
 
 
It appears that this bill is going through sooner or later as it is seen as necessary and overdue. The issue is that parliament has barely considered or discussed the implications it has on software (and some other industries too).  
 
  
 
===Current status===
 
===Current status===
  
The Commerce Committee of the Parliament is [http://www.parliament.nz/en-NZ/PB/SC/MakeSub/e/c/4/49SCCOpatentsbill200907021-Patents-Bill.htm inviting submissions till July 2], so we need to move fast and in force to point out the mistake of forgetting to review computer software patents, and that software patents cause more harm than good.
+
The Commerce Committee of the Parliament is reviewing submissions on the bill and will make recommendations to parliament around October 2009.
  
 
===History===
 
===History===
This bill is the culmination of a review of the Patents Act 1953, which was started in August 2000.<ref>http://www.med.govt.nz/templates/ContentTopicSummary____5876.aspx</ref> 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 [http://www.med.govt.nz/templates/MultipageDocumentPage____1443.aspx 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.''".
+
This bill is the culmination of a review of the Patents Act 1953, which was started in August 2000.<ref>http://www.med.govt.nz/templates/ContentTopicSummary____5876.aspx</ref> The bill intends to completely replace the old Patents Act (1953).  As part of the review, initial [http://www.med.govt.nz/templates/MultipageDocumentPage____1461.aspx 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 [http://www.med.govt.nz/templates/MultipageDocumentPage____1443.aspx 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.''".
  
The [http://www.legislation.govt.nz/bill/government/2008/0235-1/latest/096be8ed8023edc2.pdf current version] of the bill '''only mentions software once''': "''Cabinet has previously agreed to proposals in Stage 1 (August 2001) and the first part of Stage 2 (September 2001). Contentious issues including Māori and other concerns regarding issues such as the patentability of biotechnological inventions, medical treatments, and '''computer software''' and business methods, will be dealt with in Stage 3 of the review.''"  However there is '''no mention of software''' in the proposed law!
+
Judith Tizard introduced the proposed act to parliament in 2008.  Tizard also introduced S92 copyright law amendments (provoking the [http://creativefreedom.org.nz/blackout.html Internet Blackout] in February).  [http://www.med.govt.nz/templates/MultipageDocumentPage____1324.aspx 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.
  
Judith Tizard introduced the proposed act to parliament in 2008.  Tizard also introduced S92 copyright law amendments (provoking the [http://creativefreedom.org.nz/blackout.html Internet Blackout] in February).  [http://www.med.govt.nz/templates/MultipageDocumentPage____1324.aspx 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 rather short-sighted opinion based on just 14 submissions from 2002. 
+
It seems that stage 3 of the review may have also [http://www.med.govt.nz/templates/MultipageDocumentPage____1309.aspx 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;''":  
It seems that stage 3 may have [http://www.med.govt.nz/templates/MultipageDocumentPage____1309.aspx 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, [http://theyworkforyou.co.nz/bills/patents/2009/may/05/first_reading#party_vote the party votes were]:
 
At the first reading on 5 May 2009, [http://theyworkforyou.co.nz/bills/patents/2009/may/05/first_reading#party_vote the party votes were]:
 
* Supporting: National, Labour, ACT, Progres., United F, totaling 107 votes.
 
* Supporting: National, Labour, ACT, Progres., United F, totaling 107 votes.
 
* Not supporting: Green, Maori, totalling 14 votes.
 
* Not supporting: Green, Maori, totalling 14 votes.
 
Both Labour (who introduced the Bill) and Act would need to change their stance to outnumber the rest – and even then it would only be by 1 vote.
 
  
 
[http://theyworkforyou.co.nz/bills/patents/2009/may/05/first_reading#green_9 Kevin Hague (Green MP) – the '''only''' MP to mention software in the first reading] – points out that "''the [[Incompatible timespans|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.
 
[http://theyworkforyou.co.nz/bills/patents/2009/may/05/first_reading#green_9 Kevin Hague (Green MP) – the '''only''' MP to mention software in the first reading] – points out that "''the [[Incompatible timespans|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.
  
Now the Commerce Committee of the Parliament is [http://www.parliament.nz/en-NZ/PB/SC/MakeSub/e/c/4/49SCCOpatentsbill200907021-Patents-Bill.htm inviting comments till July 2].
+
The Commerce Committee of the Parliament was [http://www.parliament.nz/en-NZ/PB/SC/MakeSub/e/c/4/49SCCOpatentsbill200907021-Patents-Bill.htm inviting comments on the fill till July 2].  Oral submissions in support of written submissions will be solicited soon.
  
 
===What to do?===
 
===What to do?===
 +
* Meet with a local MP, especially if they are on the commerce committee, or involved in the ministry of commerce (See below).
 +
* [http://www.parliament.nz/en-NZ/SC/SubmCalled/e/c/4/49SCCOpatentsbill200907021-Patents-Bill.htm Make an oral submission to the Commerce Committee] in support of a written submission.
  
* [http://www.parliament.nz/en-NZ/SC/SubmCalled/e/c/4/49SCCOpatentsbill200907021-Patents-Bill.htm Make a submission to the Commerce Committee about the Patents Bill]
+
===What to say?===
* Ask them to consider the implications of patents on software development & enlighten them on the effects on [[SMEs]], consumers, prices, harms to [[competition]], entrenching of [[monopolies]], and how patents harm [[free software|free and open source software / FLOSS]]
+
* '''Ask for computer software to be excluded from patentability''', by adding a clause to section 15, like the existing exclusion for surgical procedures.
* '''Ask for an exclusion that applies to software ideas''', like the existing exclusion for surgical practices.
+
* Ask them to consider the implications of patents on software development & enlighten them on the effects on [[SMEs]], consumers, prices, harms to [[competition]], entrenching of [[monopolies]], and how patents harm [[free software|free and open source software / FLOSS]].
* The software industry needs clarity on whether useful & innovative software is a '''manner of manufacture'''.  You could research or consult legal experts.  See section on [http://en.swpat.org/wiki/New_Zealand#Exclusion_By_Other_Criteria Exclusion by other criteria] below.
 
 
 
===How to make a submission===
 
 
 
Oral submissions are probably the most impactful.  Paper submissions are probably more impactful than emails.  [http://www.parliament.nz/en-NZ/AboutParl/GetInvolved/Submission/a/9/8/00CLOOCHvYrSaySubmission1-How-to-make-a-submission.htm Parliament.nz has useful information about making submissions].
 
 
 
Post submissions to
 
  Commerce Committee
 
  Room 10.04
 
  Bowen House
 
  Parliament
 
  Wellington
 
 
 
Email submissions '''might not be accepted''', but should be addressed to [mailto:select.committees@parliament.govt.nz select.committees@parliament.govt.nz].
 
 
 
Green party's Dunedin office stresses the significant impact of oral presentations and that "''it doesn't always require travel to Wellington and it is often possible to do this over the phone.  Additionally meeting with your local MP to present a well reasoned case is a worthwhile activity, especially if your local MP is on the Commerce Committee (Listed below)''".
 
 
 
====MPs on the Commerce Committee====
 
The easiest way to get their contact details is via the [http://www.parliament.nz/NR/rdonlyres/5858C8A5-ACDF-4B35-8D7A-3ABB7B19ACDB/105144/listofmembers1706091.pdf contact sheet].
 
  
 +
===MPs to meet with===
 +
* Minister of Commerce; [http://www.parliament.nz/en-NZ/MPP/MPs/MPs/d/9/e/49MP30621-Power-Simon.htm Powers, Simon], National Party, Rangitikei
 
* Chairperson; [http://www.parliament.nz/en-NZ/MPP/MPs/MPs/6/5/1/49MP621-Dalziel-Lianne.htm Dalziel, Lianne], Labour Party, Christchurch East
 
* Chairperson; [http://www.parliament.nz/en-NZ/MPP/MPs/MPs/6/5/1/49MP621-Dalziel-Lianne.htm Dalziel, Lianne], Labour Party, Christchurch East
 
* Deputy-Chairperson; [http://www.parliament.nz/en-NZ/MPP/MPs/MPs/a/f/c/49MP169891-Lotu-Iiga-Peseta-Sam.htm Lotu-Iiga, Peseta Sam], National Party, Maungakiekie
 
* Deputy-Chairperson; [http://www.parliament.nz/en-NZ/MPP/MPs/MPs/a/f/c/49MP169891-Lotu-Iiga-Peseta-Sam.htm Lotu-Iiga, Peseta Sam], National Party, Maungakiekie
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* [http://www.parliament.nz/en-NZ/MPP/MPs/MPs/e/0/f/49MP127471-Shanks-Katrina.htm Shanks, Katrina], National Party, List
 
* [http://www.parliament.nz/en-NZ/MPP/MPs/MPs/e/0/f/49MP127471-Shanks-Katrina.htm Shanks, Katrina], National Party, List
  
===Submissions made so far===
+
More contact details, including email addresses are available on the [http://www.parliament.nz/NR/rdonlyres/5858C8A5-ACDF-4B35-8D7A-3ABB7B19ACDB/105144/listofmembers1706091.pdf contact sheet].
 +
 
 +
===Submissions===
 
* [http://egressive.com/system/files/EgressivePatentsBillSubmission.pdf Egressive Limited]
 
* [http://egressive.com/system/files/EgressivePatentsBillSubmission.pdf Egressive Limited]
 
* [http://nzoss.org.nz/news/2009/submission-software-patents The New Zealand Open Source Society]
 
* [http://nzoss.org.nz/news/2009/submission-software-patents The New Zealand Open Source Society]
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===The written law===
 
===The written law===
 
+
[http://www.legislation.govt.nz/bill/government/2008/0235-1/latest/DLM1419225.html Section 13] defines what is patentable, and [http://www.legislation.govt.nz/bill/government/2008/0235-1/latest/DLM1419228.html#DLM1419228 sections 14] and [http://www.legislation.govt.nz/bill/government/2008/0235-1/latest/DLM1419230.html#DLM1419230 15] defines exclusions.
[http://www.legislation.govt.nz/bill/government/2008/0235-1/latest/DLM1419225.html Section 13] defines what is patentable, and [http://www.legislation.govt.nz/bill/government/2008/0235-1/latest/DLM1419228.html#DLM1419228 sections 14] and [http://www.legislation.govt.nz/bill/government/2008/0235-1/latest/DLM1419230.html#DLM1419230 15] define exclusions.
 
  
 
* [http://www.legislation.govt.nz/bill/government/2008/0235-1/latest/096be8ed8023edc2.pdf 3656KB PDF of the current version of the bill] includes an 82-page explanatory note.
 
* [http://www.legislation.govt.nz/bill/government/2008/0235-1/latest/096be8ed8023edc2.pdf 3656KB PDF of the current version of the bill] includes an 82-page explanatory note.
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(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.)
 
(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.)
  
====Other exclusions in 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 [http://www.burgess.co.nz/law/select-committee-review-of-the-patents-bill noted by Guy Burgess, solicitor].
 
 
"''The bill excludes some inventions from patent protection, even though they might otherwise meet the requirements for a patent, if there is no benefit to the nation in allowing these inventions to be patented. Methods of treatment of human beings by surgery or therapy, and methods of diagnosis practised on human beings will not be able to be patented under the bill... In line with the recommendations of the Royal Commission on Genetic Modification, human beings and biological processes for their generation have been excluded from patent protection.''" – [http://theyworkforyou.co.nz/bills/patents/2009/may/05/first_reading#attorney-general_1 Hon CHRISTOPHER FINLAYSON (Attorney-General)]
 
 
 
====Exclusion by other criteria====
 
 
 
[http://theyworkforyou.co.nz/bills/patents/2009/may/05/first_reading#attorney-general_1 Hon CHRISTOPHER FINLAYSON (Attorney-General)] also says that under the proposed bill "''To be granted a patent ... an invention must be a '''manner of manufacture''', novel, involve an inventive step, and be useful.''" Which raises the question: is useful & innovative software a '''''manner of manufacture'''''?  To be precise: [http://www.legislation.govt.nz/bill/government/2008/0235-1/latest/DLM1419225.html Section 13] requires applications to cover "''a manner of manufacture within the meaning of section 6 of the Statute of Monopolies''".  This term should be looked up, but third-party reports already say that this text does introduce software patents.
 
  
 
==Patent office==
 
==Patent office==
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* http://theyworkforyou.co.nz/bills/patents
 
* http://theyworkforyou.co.nz/bills/patents
 
* [http://www.med.govt.nz/templates/ContentTopicSummary____2168.aspx Masters thesis on patents in NZ], by Joel W Pauling
 
* [http://www.med.govt.nz/templates/ContentTopicSummary____2168.aspx Masters thesis on patents in NZ], by Joel W Pauling
** [http://www.med.govt.nz/templates/MultipageDocumentPage____1461.aspx Software patents article from same website], author could be different though
 
 
* [http://ipwatch.internetnz.net.nz/ IPwatch service of InternetNZ]
 
* [http://ipwatch.internetnz.net.nz/ IPwatch service of InternetNZ]
 
* [http://www.internetnz.net.nz/proceedings/ctte/pub-pol/archive/2003/larac030829patent.html 2003 comments by InternetNZ regarding swpats in NZ]
 
* [http://www.internetnz.net.nz/proceedings/ctte/pub-pol/archive/2003/larac030829patent.html 2003 comments by InternetNZ regarding swpats in NZ]

Revision as of 00:49, 6 July 2009

Info to gather about
countries and regions
  • News articles?
  • Companies harmed
  • Studies showing harm?
  • Legislation
  • Court cases
  • Patents granted
  • About the patent office
  • Politicians against swpat

Patents Bill 2009

Summary

The proposed Patents Bill affects the whole 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 is that the implications it has on software has not been sufficiently considered or discussed.

Current status

The Commerce Committee of the Parliament is reviewing submissions on the bill and will make recommendations to parliament around October 2009.

History

This bill is the culmination of a review of the Patents Act 1953, which was started in August 2000.[1] 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. Oral submissions in support of written submissions will be solicited soon.

What to do?

What to say?

  • Ask for computer software to be excluded from patentability, by adding a clause to section 15, like the existing exclusion for surgical procedures.
  • Ask them to consider the implications of patents on software development & enlighten them on the effects on SMEs, consumers, prices, harms to competition, entrenching of monopolies, and how patents harm free and open source software / FLOSS.

MPs to meet with

More contact details, including email addresses are available on the contact sheet.

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.

Articles

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.

Patent office

The Intellectual Property Office of New Zealand (IPONZ) is responsible for examining patent applications.

In 2005, they approved an application for using a computer with an XML word-processor document, displayed with an XML Schema Definition, using software with the functionality of "parsing, modifying, reading, and creating the word-processor document".[2] [3]

To search for patents on the NZIPO website, go to their search page:

Then fill in one or more fields and go back to the top of the page and click "Submit query".

See also

External links

Government institutions

Other

References