Wednesday, October 17, 2012

Lines in the Sand

So the software patent issue continues. For those of you who don't know, the patent system is being reviewed in New Zealand. After a lot of select committee hearings last year, the select committee put forward the recommendation that software be excluded from patentability.

But there was a spanner in the works. It turns out that most software patents in New Zealand aren't filed by New Zealand programmers. They're done by multinationals - the Microsoft's of the world. So representatives of these interests kept up a great big FUD (Fear Uncertainty Doubt) campaign. Software Inventors wouldn't be protected!

The New Zealand industry believes that copyright is all the protection we need. Firstly, software is cumulative. Secondly, a 25 year patent only serves to stifle the industry - counter to the intention behind patents (that an entity should enjoy a limited monopoly for their invention to encourage them to invest in advancing it).

So most in New Zealand agree, software shouldn't be patentable. Except... Craig Foss, minister of commerce, has been drinking some body's Kool-Aid. He introduced two words, "As Such" to the bill. The words are interesting. Take this example:
Craig Foss is not corrupt as such.
Those two words can change the meaning quite a bit. But, more importantly, there are examples where this terminology has been ineffective in accomplishing the goal of making software unpatentable. The European Union have used just that wording and it's failed. Miserably.

The more interesting bit is that Craig Foss is ignoring the evidence presented to him around the mess that the European Union have found themselves in, and still believes that he is excluding software from patentability. The letters I've seen to other people suggest that he is relying solely on advisers - and is quite willing to offload any responsibility their way.

The other parties in parliament have come out against Craig Foss' changes. Clare Curren, Labour's ICT Spokesperson, has even suggested alternative wording. But no cigar.

This is a problem I have with party politics. It seems to me that a lot of the time a good idea is thrown out because of it's source. Surely a good idea is a good idea.

It seems to me that Craig Foss is now standing very stubbornly trying to prove he's right while he fields questions around why he's ignoring the evidence of this approach not working,

So New Zealand has the opportunity to do something right. The two sides (and numbers don't seem to count in this fight) are squaring off against each other. Now... how do you fight a minister's ego?


  1. What's the context of the "such as" insertion? Would be interested to see the whole clause.

  2. The change is from:

    10A Computer Programs
    (1) A computer program is not an invention for the purposes of this Act.

    To (by Craig Foss):

    10A Computer Programs
    (1) A computer program is not an invention for the purposes of this Act.
    (2) Subsection (1) prevents anything from being an invention for the purposes of this Act only to the extent that a patent or an application relates to a computer program as such.

    The proposed change by Clare Curren:

    10A Computer Programs
    (1) A computer program is not an invention for the purposes of this Act.
    (2) Subsection (1) does not prevent an invention that makes use of an embedded computer program from being patentable.

    To me, Clare Curren's amendment makes the most sense though there is some argument as to whether it introduces some uncertainty because there is no legal definition of "embedded software". It can also be argued that there aren't legal definitions for a lot of words that appear in our laws and that excluding such a clause on that basis is an attempt to subterfuge the whole process. Personally I think it's a much lesser evil than the "as such" terminology.

  3. Just a little further point, there's some discussion on whether it needs to change from the first version at all.

    The fear is that an exclusion on software patents could result in patentable inventions being unpatentable because they implement software. The reaction is to allow embedded software to be patentable.

    A cog is not patentable but an invention that makes use of cogs is patentable. So, if it really is an invention, it probably has an effect on the physical world, which is patentable...