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The proposed Patents Bill 2009

This is a proposed Patents Bill that would affect the whole patents system. Regarding software, it will introduce unlimited software patenting.

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.

Now the Commerce Committee of the Parliament is inviting comments till July 2.

Both Labour and Act would need to change their stance to outnumber the rest – and even then it would only be by 1 vote. Labour is unlikely to change since they introduced in on 9 July 2008. To be precise it was Judith Tizard, who also introduced S92 copyright law amendments (remember the Internet Blackout in February?) that introduced it.

It appears that this bill is going through sooner or later and that it is seen as both necessary and overdue. The issue is that parliament has barely considered or discussed the implications it has on software (and some other industries too).

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 for ever for a software idea".

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. 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. Most 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 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 any software exception or exclusion in the proposed law!

It seems that stage 3 may have 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;":

What To Do?

How To Make A Submission?

Oral submissions are probably the most impactful. Paper submissions are probably more impactful than emails. Emailed submissions will be considered. parliament.nz: Parliament.nz has useful information about making submissions of all types. Email submissions should be addressed to select.committees@parliament.govt.nz.

Here is a submission template to get you started:

 SUBMISSION on the Patents Bill 
 To the Commerce Committee 
 
 ==Introduction==
 This submission is from (NAME AND ADDRESS OF INDIVIDUAL/ORGANISATION).
 
 I/we have worked in the software industry for (INFO ABOUT YOUR EXPERIENCE THAT ADDS WEIGHT TO THE AUTHORITATIVENESS OF YOUR OPINIONS)
 
 I/we wish to appear before the committee to speak to my/our submission. (OPTIONAL)
 
 I can be contacted at: (CONTACT DETAILS, OPTIONAL)
 
 I/we wish that the following also appear in support of my/our submission:
 (OTHERS ATTENDING AN ORAL SUBMISSION, OPTIONAL)
 
 ==Summary==
 The Patents Bill has not sufficiently considered the negative impacts of patents on computer software.
 
 ==Insufficient consideration of computer software==
 14 submissions were received in 2002 on Business Methods and Software [1], which were not sufficient, not comprehensive and now some-what out-dated in a rapidly moving technology industry.
 
 The bill mentions "computer software" only once where it states that "Contentious issues including ... computer software and business methods, will be dealt with in Stage 3 of the review."  However stage 3 of the review does not appear to have considered computer software, and there is no mention of software in the proposed Act.
 
 In the first reading of 5 May 2009, computer software was only mentioned only once, by Green party MP Kevin Hague [2].  Kevin Hague understands the negative impact that patents have on computer software and I quote his speech later in this submission.
 
 I could not find any other points where computer software has been considered in the 8-year review of the Patents Act.  Clearly more work needs to go into the bill on this issue before it can be passed.  The bill itself states that computer software needs special consideration in the review, which does not appear to have happened.
 
 ==Negative impacts of computer software patentability==
 Software patents inhibit innovation.  The reasons why and examples of this are far too many to publish here.  SWPat.org [3] is a good resource for details and evidence of this.  A summary of some general issues that commonly result from computer software patentability;
 
 * Software patents make it too easy for patent-owners to monopolize a market, which is anti-competitive, and always bad for end consumers.
 * Software patents make it easy for patent-owners to manipulate and 'bully' clients or competing organizations.
 * Software patents make it difficult or impossible for standards to be authored and implemented.
 * Software patents discourage software interoperability, such as opening or creating files in formats of a different software vendor, and can even make it difficult or impossible.
 * Software patents stifle innovation.
 * Software patents lower competition, which lowers quality of software and raises prices.
 * Software innovation is cheap, but software patents are expensive, putting them out of reach of SMEs.
 * Few people have skills to assess software patents.
 
 Green party MP Kevin Hague sums it up well:
 
   "I will begin by looking briefly at software. The bill proposes that software should be patentable; the opposite direction to that being pursued by the European Union. This is a very bad idea. The foremost theorist in this area is Richard Stallman. Stallman eloquently argues that the use of software patents stifles creativity, massively reduces efficiency, and can lead to whole areas of software usefulness remaining unexplored. Software patents are a substantial cause of software incompatibility, for example. He draws an analogy with the composition of a symphony. Suppose someone had patented particular chord progressions, sequences of notes, or combinations of instruments playing at the same time. What sort of problem would Beethoven have had? We regard him as a brilliant and innovative composer, but he wrote symphonies using a musical vocabulary comprised of very many musical ideas developed by multiple composers. Stallman argues that even a genius software programmer must draw on a standard vocabulary of programming ideas. If software patents are permitted, then the programmer cannot draw on such ideas without infringing patents. The consequences are that whole areas of software development are avoided lest software developers breach patents, and in other areas inefficient or otherwise unsatisfactory programs remain in use because it is not technically feasible to develop better options because of this restriction. In this area patents are clearly a brake and a hindrance on innovation.
 
   "Stallman also makes some other points. He points out that the 20-year duration of patent coverage may be reasonable for a new mousetrap, but is effectively for ever for a software idea—think back to the software that we were using in 1989. He also notes that it is effectively impossible for somebody developing a new program to be aware of all the patents that may apply to her or his area of work. In the United States there are over 100,000 software patents—possibly as many as 200,000. It is hard to count because they keep growing and growing at a faster and faster rate. It is not possible to be aware of all the patents that may apply, and, in general, it is not feasible to research the matter."
 
 Indeed, one solution to the issues of software patentability might be to significantly lower the validity of software patents.  However this would be a complicated law to control and not solve the core problem of software patentability.
 
 ==Section 15, Other exclusions==
 The issue of computer software patentability could be resolved by adding a clause to section 15 excluding computer software from patentability.
 
 ==Recommendations==
 I/we urge the commerce committee and parliament to exclude computer software as a patentable invention, or delay passing the new Act to allow for proper consideration of the impacts patents have on computer software.
 
 ==References==
 [1] Summary of 14 submissions in 2002 http://www.med.govt.nz/templates/MultipageDocumentPage____1443.aspx
 [2] MP Kevin Hague on computer software at the first reading http://theyworkforyou.co.nz/bills/patents/2009/may/05/first_reading#green_9
 [3] SWPats.org, End Software Patents wiki http://swpat.org/

Public Submissions

The Written Law

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

Other Exclusions In The Bill

"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." – Hon CHRISTOPHER FINLAYSON (Attorney-General)

Exclusion By Other Criteria

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: 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

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