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Contents

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

  1. http://www.med.govt.nz/templates/ContentTopicSummary____5876.aspx
  2. http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10115247
  3. http://www.iponz.govt.nz/ipol-ipdocs/doc/11399/11399109_ido_6918154_6.doc