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Breaking news: New Zealand returns to abolition of software patents, July 15th 2010

Contents

Patents Bill 2009

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.

Current status

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:

Who's lobbying for software patents

Who's against software patents

  • NZCS.[2] From a recent survey, 80% of their members were against software patents.[3]
  • NZOSS (nzoss.org.nz) - members of which wrote letters which lead to the government recommending abolition of software patents.

History

This bill is the culmination of a review of the Patents Act 1953, which was started in August 2000.[4] 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.

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 decisions

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".[5] [6]

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".

Related pages on en.swpat.org

External links

Government institutions

Third-party pages about The Patents Bill

Other

References

  1. http://davelane.name/blog/dave/nzict-unwarranted-influence-software-patents NZICT
  2. "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." 
  3. http://computerworld.co.nz/news.nsf/news/nzcs-lobbies-to-end-patent-protection-for-software
  4. http://www.med.govt.nz/templates/ContentTopicSummary____5876.aspx
  5. http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10115247
  6. http://www.iponz.govt.nz/ipol-ipdocs/doc/11399/11399109_ido_6918154_6.doc


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