Red Alert

Open policy vs backroom deals

Posted by on June 24th, 2010

I am one of those people that tends to take people and their statements at face value. Mostly.

So I’m interested to know whether this government stands by its claims to be transparent. Or whether it becomes captive to industry lobbying and backroom deals. If you believe what’s being reported today, you’d think there was a major backflip on the cards.

I’m prepared to give the government and the Commerce Minister the benefit of the doubt.

When Simon Power appeared before the Commerce Select Committee a couple of weeks ago I asked him whether he stood by his previous statement that software would be excluded from the government ‘s  new Patent Bill.

He firmly stated “yes”. But added that there would be an SOP (Supplementary Order Paper) to “clarify the government’s intent”.

This is quite a big deal. I’m sure most of your eyes would glaze over if I explained the ins and outs. Here’s some background for the dedicated.

The point is that Simon Power, Minister of Commerce, has twice publicly said the government backs exclusion of software from the Patent Bill. The select committee recommended software exclusion because it said it will allow more innovation to our local software industry.

Why? Because computer software is like books, movies or music, based on a concept and should not be patentable. It would be like preventing anyone from using certain musical notes, or words, because they have a patent. Instead software should receive, as it already does,  protection under copyright. That was the select committee’s recommendation.

Today  it’s being reported that backroom lobbying by the organisation that includes major software patenters has resulted in the Ministry of Economic Development backing away from the Commerce Committee’s recommendation and instead redrafting the Bill along the lines of the European Convention.

The European Patent Convention on the face of it excludes software patents, but the European Patent Office has been granting them.

The purported flip flop has been revealed on an American blog post (fixed the link)  which reproduces an email from industry lobbyist NZICT Group CEO Brett O’Riley.

Neither NZICT nor Microsoft, one of it’s major members, put in a submission on this Bill at the select committee stage. The allegation is that  they were unhappy with the committee recommendation and have “gone around” it to try to undo it.

Do I sense another Section 92A situation brewing?

And more importantly, just how does policy and legislation get made? Do we do it after an open and transparent process via the select committee? Or are powerful interests able to sway the government’s mind afterwards?

Every organisation has the right to push its view. But this goes to heart of how laws get made. In the open or behind a closed door?

I reckon Simon Power’s word is pretty good.

37 Responses to “Open policy vs backroom deals”

  1. Spud says:

    Not transparent :-(

  2. David Lane says:

    I’d just like to point out the irony (hypocrisy?) of these revelations of secret back-room dealings which circumvent open and transparent democratic processes on the eve of Microsoft’s much publicised “Open Government” conference, in which it will no doubt attempt to position itself as the global leader in providing “open government” services.

    I encourage healthy scepticism from all participants.

    It’s worth noting that Microsoft failed to engage any of the participants in the already well-established grass-roots kiwi open government movement: those who previously ran the very successful OpenGovt bar camp and hackfest (see, and manage existing open data resources via

  3. Dr Pitt says:

    Not really that surprising, Simon Power has a history ignoring the recommendation of others more knowledgeable than him. Earlier this year he completely dismissed the Law Commission’s review of the 1975 Misuse of Drugs Act.

  4. Ignoring the recommendations of a select committee in favour of closed-door lobbying is exactly what Judith Tizard did in the last government. That didn’t turn out too well for anybody. It took intervention from the Prime Minister to restore proper process.

    Let’s hope the democratic process works properly this time.


  5. As they claimed they would, a group of wealthy foreign software companies had this all in hand, and someone talked to the right person at the right time to ensure we have software patents in New Zealand law. Bypassing all transparent process. Oh the smugness with which they claimed their influence, a much stronger influence than New Zealanders and the members of the select commitee have.

    Why do we allow SOPs? Can you do anything you want in a SOP? change the bill completely?

    This is exactly what Tizard did, yes, but she didn’t do it alone. Her amended bill was voted in by all of Labour and National. That’s where the flaw lies – the bill changed at the last moment and MPs join together to all vote it in. Will that happen again on Clare’s watch?

  6. waterboy says:

    Are we surprised!

  7. Idiot/Savant says:

    It would be like preventing anyone from using certain musical notes, or words, because they have a patent.

    Actually, it would be like preventing people from adding numbers. Or using an efficient method to look through a dictionary or encyclopedia. Or from sticking a note to the fridge to remind them to do something.

  8. Spud says:

    There are only 12 notes in the equal temperament tuning. So this is pretty dodgy :-( :-( :-(

  9. Clare Curran says:

    @Idiot/Savant Very eloquently put.

    For those of you interested, here’s the transcript of my question to Simon Power in the Select Committee 3 June 2010

    Commerce Committee
    Meeting Date: 3/06/2010
    Transcribed from agenda item 06) 2010/11 Vote Commerce 9.15am – 10.15am

    Simon Power / Clare Curran

    Clare Curran:

    I’m Changing the subject- Matters of intellectual property starting off with patents

    Noting your comments around the recommendation to exclude software from the Patent Bill – it’s reported that, can you, are you able to- and the fact that there have been quite a lot of public discussions since then – Are you able to reiterate that statement that software patents- that the government supports the exclusion of software patents from the-


    Sorry Ms Curran just that last part again-


    Are you able to reiterate your statement of support for exclusion of software patents-


    yes, ah there may be um that’s the recommendation of the committee um ive said that im supportive of the committees position, they have been closer to the submissions than I have. I understand officials raised this with me in recent days that we may have to look at an SOP to clarify the intent, but the policy decision that the committee is recommending I support.


    Thank you

  10. Falafulu Fisi says:

    I think that software should still be included in the patent bill but only new invention. Things that are too generic (i.e., no new inventions) must be thrown out entirely. No one in the country knows more than Prof. Nik Kasabov of AUT because he holds many software patents for (new) algorithms that he (& his group) discovered. They spent money in order to make the discovery; therefore their efforts should be protected.

    I’ve mentioned before in a similar blog post here, that stupid patents (granted in the US) such as using existing techniques as neural network and fuzzy inference systems (or similar ones) for screening job applications candidate should have been thrown out. There was no invention at all in that patent.

    There is a reason why Microsoft and others like it, want to protect their algorithm via patents since they pour billions a year into R&D. Their inventions are original (i.e., new) so they deserve to be protected. Innovations will drop if their inventions are not protected. I mean, where is the incentive in there for them to keep hiring a platoon of PhDs to do original R&D only to find that the fruits of their work are not protected. One only has to peek or look at the amount of R&D publications that is pouring out from Microsoft Research. It is unbelievable. The qualities, variety, frequency of their publications which are appeared in various computing, mathematics, engineering journals are very impressive. Most of their publications are made available to the public to download even with ones that describe algorithms they have patented. I have implemented some algorithms from some of their (Microsoft) publications (including patented ones), i.e., they’re free to use/implement. What I can’t do is to make claim to them (well they have patented them). I am a benefactor of their (Microsoft) innovations’ and R&D efforts (that’s including thousands from around the world like me who’re regularly scouring the computing literature looking for something interesting to implement) .

    Here is one very important point that should be considered. If new software inventions are not protected via patent, then you won’t ever see any R&D work (either from academic institutions or private sector) being submitted for publications. Not publishing their work to share with the world is a step backward. This means that I (& thousand of others) wouldn’t get to learn about latest innovations/algorithms. I will get stuck or freeze in time (knowledge-wise). This is why it is important to protect new inventions, but not generic useless claims which must be thrown out.

  11. Tracey says:

    Clare, that’s pretty definitive from Power, are we likely to get a good answer as to what changed his mind, or will it be ignored?

  12. Jeremy M Harris says:

    Consumers beware, if this type of software doesn’t form a true piece of “private or intellectual property”, whenever big companies influence government policy for their protection price goes up…

  13. DonChristie says:

    “Here is one very important point that should be considered. If new software inventions are not protected via patent, then you won’t ever see any R&D work (either from academic institutions or private sector) being submitted for publications”

    That is simply a ridiculous proposition and one that is not born out by facts. Software developed for decades without patents, as did biological research and agri-research. People like Bill Gates became *very* rich before the USPTO and courts dreamed up the idea of s/w patents.

    Invention and innovation abounds. Look around you. 99.9% of it does so without patents.

    On the other hand, I can give you many cases where our company, other NZ companies and our clients have been threatened or prevented from innovating because of spurious patents.

    Basically they represent property theft.

  14. Falafulu Fisi says:

    Don, can you tell me why the US military (industrial) complex are not openly publishing their (software) R&D works in refereed journals that are widely available for the general public and academic world? Why do they keep them secret? Do other countries want to get access to those R&D publications and algorithms? Definitely. There is a reason why they don’t want to share it with the world. Eventually some military technology get stolen via espionage, but it is pointless to argue in court that some country , say China had stolen some state-of-the-art missile target tracking algorithm. That’s the nature of that game, you don’t publish at all. You don’t share innovations with the outside world. You keep things to yourself even the other guy is trying to steal your technology via espionage.

    It is no different from Corporations like Microsoft, Google, Yahoo, IBM and others. They could go secret themselves (exactly as the military are doing) and not openly share their R&Ds via publications, but then we (outside world) won’t be able to share their brains. As I have stated above that their algorithms are publicly available (even the patented ones). One can use them for any commercial application and believe me that I have done this a few times. What I cannot do is to claim that the algorithm is mine, that’s it. They’re not banning me from using their algorithms for commercial applications. All they want from me (& other users/developers from around the world) is not to claim it as my work. I suspect (I am not a patent lawyer) that the reason for them doing that is to stop technology adopters/implementers from sub-licensing the technology to others whom it wasn’t theirs in the first place to do that.

    Don said…
    I can give you many cases where our company, other NZ companies and our clients have been threatened or prevented from innovating because of spurious patents.

    Ok, list some examples then.

    Note that in my message above, I stated clearly that new inventions need protection but generics do not. I like to see your examples if you could list some, because I suspect that some of those patents you’re referring to may have been the ones that should not have been granted in the first place. Are you with me here? See, my example above on a patent that was granted in the US about the use of neural net and fuzzy system for candidate job application automated screening. That should not have been granted in the first place because there was no invention there at all. It is an area that is too generic which doesn’t deserve granting a patent there. That was a ridiculous patent.

  15. Martin Kealey says:

    Falafulu Fisi:

    It’s only through Microsoft’s beneficence that you can use their patents without fee; patents grant an absolute right to control every possible use of the invention. If those patents had been held by, say, SCO, they’d have sold the roof from over your head for doing what you’ve already done.

    The entire basis for patents as a property right is that inventions are *rare* and unlikely to be independently replicated. In the software field in the 21st century, that simply isn’t the case. Software inventions are made all the time.

    Microsoft’s R&D documents are indeed interesting reading, and their patent protection probably does encourage them to be more open, but for every R&D person inside Microsoft there are probably a thousand outside, most of them not working for any other large corporation, and a good many of them working completely solo, or on open source projects.

    In short, the pace of software innovation would barely blink if Microsoft stopped publishing tomorrow. If you want to see the state of art in software, try looking on & …

  16. Loota says:

    In short, the pace of software innovation would barely blink if Microsoft stopped publishing tomorrow. If you want to see the state of art in software, try looking on & …

    Except for Office 2010 you mean! That thing is a breakthrough!!!

  17. Falafulu Fisi says:

    Clare and Don Christie,

    Here was a patent application that was filed by owners of local software company Sonar6 (Sam Morgan is an investor and director there).

    If you read it’s description and it’s claims, you can clearly see that such application should be thrown out once it’s been submitted. First, there was no invention at all. They worded it to sound like that they have invented something. This is the type of patent application that I said in my previous message that is ridiculous if it is to be granted. A high school student could have thought of or come up with the idea him/herself that the founders of Sonar6 tried to patent.

    The above patent application cannot be equated to something like the following (algorithm) invention from Microsoft, for example (see link below). It is a technical document, but I am using it here to make my point very clear. Well it is based on a popular algorithm today call NNMF (non-negative matrix factorisation), which has found practical & commercial applications today in speech processing, image processing, signal processing, search engine, bioinformatics, finance, telecommunication systems, medicine and many more. It has different variants that are being invented & published on a regular basis (since the original NNMF was first published in 1999).

    Distributed Non-negative Matrix Factorization for
    Web-Scale Dyadic Data Analysis on MapReduce
    by Chao Liu et al (from Microsoft Research) appeared in Proceedings of the 19th international conference on World wide web, year 2010, published by ACM.

    The paper above, the authors (Microsoft) had derived some new variants of NNMF or shall we say, they invented them (which have never been done before). This work deserves protection if Microsoft decided that it is worth patenting their invention. However, this will not stop people like me from implementing those Microsoft invented NNMF new variants if I wish to. This means that I can implement those and use them in any commercial application. In fact, I may implement those Microsoft NNMF variants myself (in addition to about 8 NNMF variants I have already implemented based on other authors papers) because those Microsoft variants look interesting to me for possible use in financial analytics application.

    The important point here is to differentiate what Sonar6 tried to patent and what if Microsoft decided to file a patent on their algorithm described in the paper above. Sonar6 didn’t invent anything, while the 5 Microsoft co-authors invented 3 NNMF variants. It costs money for them (Microsoft) to do their research and it could have taken them months before they completed. The 2 examples above are not the same. One deserves to be protected (i.e., Microsoft – because it is an invention, i.e., original which has never been done before) and the other application deserved to be thrown out immediately (Sonar6) once they lodged their application because there was no invention and it is too generic.

    Does it make sense now? The reason I have to explain this bit more detail, since I think that your committee members, Clare do not understand how R&D & referee publication work. I am surprised that that NZCS didn’t urge their fellow member, Prof. Kasabov (of AUT) to appear before your committee, since he should be the one that knows software patents (he holds many software patents in the US).

  18. Brent Bailey says:

    We need to take action to sort this out right now:
    If you are a NZ software developer and you have become a member of NZICT, then resign from this group immediately.
    Write to Simon Power and give him a piece of your mind right now.
    Contact every NZ software developer you know and tell them to do the same.
    Install Ubuntu on your desktop and run Open Office.
    Knit yourself a nice cardy (sorry was that my outside voice?).

  19. John Rankin says:

    A computer programmer defines the performance of a computer in much the same way that a playwright describes the performance of actors (see for example Computers as Theatre by Brenda Laurel). Playwrights all over the world and in all cultures invent new theatrical devices and plot elements. Falafulu Fisi makes the case that software developers are inventors and so should be given patent protection to encourage them to innovate and develop ideas that are original. By this logic, playwrights, novelists, poets, composers and others who invent new ideas in their fields should also have the protection of patents.

    Donald Knuth is one of the world’s leading authorities on algorithms. Here is what he thinks of software patents: (he’s agin them). The most thorough demolition of the case for software patents that I have heard was Richard Stallman’s talk in Wellington last year. A transcript is available at

    If Simon Power has new information, not available to the Select Committee, then it would be helpful if he placed this into the public arena so it can be scrutinised. Let’s keep the process transparent and democratic.

  20. Draco T Bastard says:

    Well, from my studies and observations, I’d say that it’s become traditional to make the decisions behind closed doors. This prevents accountability for those pushing legislation for their own benefit. This is part of the culture of entitlement that is systemic to the capitalist system that needs to change. Open government where all the information that decisions are based upon needs to be open to the public and nobody should be able to petition/lobby the government once the select committee submission process has closed and certainly not after the committee has made it’s recommendations (those recommendations should be binding as well).

  21. Draco T Bastard says:

    There is a reason why Microsoft and others like it, want to protect their algorithm via patents since they pour billions a year into R&D. Their inventions are original…

    Not from MS – you’ll usually find it in the Open Source software first. Actually, I can’t think of a single thing that MS has done first.

    …because he holds many software patents for (new) algorithms that he (& his group) discovered.

    Did he patent the software or the algorithm?

    What I can’t do is to make claim to them (well they have patented them).

    You wouldn’t be able to anyway due to copyright which is applied automatically.

    If new software inventions are not protected via patent, then you won’t ever see any R&D work…

    Plenty of it going on in the OpenSource movement and elsewhere. That’s not likely to change. Patents for software aren’t needed as it’s protected under copyright.

    Except for Office 2010 you mean! That thing is a breakthrough!!!

    Has MS got their file sizes down to everyone else’s standard yet?

    The big problem with patenting software is that it almost always depends upon hardware. If there’s only one way of doing something because of hardware constraints (variables outside of the programmers control) then is it viable to have the software patented?

  22. lprent says:

    Hey Clare, the link to the americian post doesn’t work

  23. Spud says:

    I read on the net that some dude was complaining about the ipad because he thought they had stolen the idea off him…

  24. Clare Curran says:

    @Lprent Have fixed the link. Apparently the google cache expired.

  25. Falafulu Fisi says:

    T Bastard,

    You wrote nonsense.

    The problem with you script kiddies & programmers think is that you thin the world is run by office software’s and therefore everything should be open source as it is no big deal.

    But the world is not and you know that. There is engineering and scientific stuff that is not going to be understood by script kiddies who think that being a programmer is that all you need to know to call yourself a software engineer. Corporate and academics do original research (i.e., inventions using brain) because the average script kiddy programmer would not have a clue to how inventing new cutting edge technology. Think about it.

    There is telecommunication switching software (very complex – I was involved in the development of a telecommunication optical switching embedded software earlier in my career), there is robotic software, there is sophisticated control system software (think of how an aircraft is guided to its destination – like an autopilot), there is consumer device embedded software (think of how a motion stabilizer camera works – i.e., you could move around and the camera still focuses) and many more in the real world. There is no open source (or very little in these areas). The cutting edge research is only done with money and huge human resources and these are needed to be protected. Such open sources you guys are talking about are not even use in these cutting edge software technologies.

    Anyone who can program software can participate in an open source development project, but something complex as I have stated above, they only hire PhD dudes, because these projects are complex.

    Again, read what I have stated on this thread so far. I am against blanket awarding a patent for things that are too generic. New inventions are a different matter and needs to be protected. We can thank those who published their work (and still patent them) and make it available to the public so that others can take on their ideas and improve on them or invent something new out of those. This is the reason most publish their work in refereed journal but some have chosen to patent. Think about it. If they don’t share their work with the world then innovation will be frozen. Researchers publish their work to share with others, but at the same time they feel that their work is protected.

  26. John W says:

    Specifics argued for the sake of protection of a field of interest do need to be looked at in a wider perspective.

    Detection of script kiddies is irrelevant.

    All modern technologies are built on a community base and without that would be unlikely to exist at current levels of development.

    Any protection of significant invention in software must be based on short term working life then reduced to a much lower status before expiry. Cutting edge is usually months not years.

    This is an information age and the riches of past work and thinking, often incrementally accumulative, is the basis of much development.
    New departure may well be identified but likelihood of any development standing alone from its technological base is not high.

    Protection in a public arena applies to products being made available for profit. It may well bring a responsibility also such as support the product for the length of any protection given with sound consumer guarantee protected also.

    M$ has demonstrated the worse kind of profitaking and abuse of position. That is a factor in decisions by some govts to use open source throughout their departments.

    NACT should not cave in to their demand behind closed doors. One can rightfully suspect the record of corrupting influences will be more easily examined if all is out in the open.

  27. Falafulu Fisi says:

    John W, my point was that those who don’t understand value knowledge and doing something for a hobby (open source scripting) is the same ones who are calling for the elimination of protections of new knowledge via patent. These hobbyists have no clue to how academics & corporate are taking risks to fund projects that may never have found a useful solutions. It is risk taking and if they found a solution, then why not protects that? Their solutions were not revealed to them via psychic dreams? It was pure hard work (a few months or may be up to years).

    A few years ago, local tech darling Navman funded AUT researchers to find a way to improve in-car speech enhancement & processing. This specific domain (speech command car navigation) is very competitive worldwide and whichever company that’s ahead of the competition will gain a larger portion of the market. This area is very difficult, since the noise when the car is running (i.e., engine’s noise is always there – there is no noiseless car in existence yet). When the driver issue a voice command (via speaking), the engine’s noise is added to the drivers’ voice command. This tends to deteriorate the speech signals therefore making the speech processing of the voice command inaccurate. AUT researchers came up with a separation algorithm that could remove the car engine’s noise, thus enhancing the driver’s voice command (i.e., noise free). Navman didn’t get scripting programmers to write them the speech enhancement software nor could they find a solution out there in some opensource, none whatsoever. Navman took risks .The AUT researchers published their findings:

    In-vehicle Noise and Enhanced Speech Intelligibility

    There are 2 advantages here. Innovation is continuing since Navman’s competitors are scouring or keeping track of what’s being published in the computing/engineering literatures same as Navman’s researchers. So, everyone out there had been gifted some starting point of where to look for a better algorithm than that from Navman. Had Navman decided to patent their algorithm, then other implementers (including its competitors) would have to look for a new solution (perhaps similar), however since Navman’s researchers had shared their R&Ds with everyone , their publication gives everyone somewhere to start. Competitors will invent something new (because Navman’s algorithm is patented and they can’t use it, etc) out of Navman’s publication. Let’s say that Navman didn’t patent their invention. Its competitors will just use Navman’s algorithm and they wouldn’t bother to fund their researchers to look for a better algorithm than the one Navman had invented. I mean there is no incentive for them to take some risks at all since they would be happy in using Navman’s algorithm. Now, can some of you see how innovation stops?

    I requested Don Christie to list some (other companies’ patents) that he said had stifled his company’s software development, but he has somehow being quiet about coming forward about a list. Why is Don being quiet? I suspect that perhaps some of those other patents that he meant were those that I would have thrown out if I was working at the patent office. It means that they should have never been granted in the first place.

    Protection of knowledge via patents should still be applied to software inventions however it should be strengthened by eliminating all generics or patent applications with claims that have no inventions at all in there. Once that is done, then Don & others would find that the software patents that have stifled their commercial developments in the past have just gone (disappeared completely). The only software patents that have remained protected are the ones that they hardly ever want to use or needed in their developments.

  28. DonChristie says:

    Hey FF, thanks for insinuating that I am a liar. To be honest, the reason I stopped replying to you is that I long ago concluded you were a bit of a troll. I am also overseas. right now. However, offlist, someone from AJ Park asked me to respond to you, so here goes…

    Perhaps you could do us the favour reading through some of the submissions made to the select committee. Have a look at what a Canadian company called DET tried to pull off.

    I had confirmation last week that MED considered a s/w patent that impacts any company that hosts and runs well architected and busy web sites would stand under their proposed “clarifications”. This does not give me confidence in their thinking.

    We have also received threats around election systems (we develop the NZ General Election Management system), and text messaging technology, we develop and host many systems in that field.

    Every contract we sign now has large liability and indemnity clauses which we have to back. This has been a big change over the last few years. Insurance companies are not keen to offer insurance on IP indemnity and where they do it is expensive.

    In related news, Microsoft has claimed that it has over 200 patents on software ideas used in Linux. They won’t tell anyone what those patents are.

    You should consider directing your questions at them and their legal teams, both here and overseas.

  29. Falafulu Fisi says:

    Don Christie said…
    Hey FF, thanks for insinuating that I am a liar.

    Don, I never implied that you’re a liar. You’re putting words into my mouth. I asked that you list some examples of the concerns you have stated here about software patents which you & your lot think inhibits or slows software technology innovation. I assumed the reason you’re being quiet when asked to list them, is because you may realize that I half agree with you and half disagree with you. It looks like that this is the case, based on what I read on the link you’ve provided above. (More on that below).

    I think that you’ve failed to understand what I’ve put forward in my argument here. Go back and re-read of what I had said above. Any attempt to patent nonsense, must be thrown out in its entirety, no ifs no butts. A good example of this is Canadian patent troll, DET mentioned in the link you provided. Their patent should have never been approved in the first place. However, it is a different matter altogether when you spend 100’s of thousands of dollars & manpower trying to invent something totally new that has never been done before anywhere in the world, which you need protection. Can you see the point or not? Original invention such as algorithms like that (it costs money & manpower) cannot be equated to DET or Sonar6’s efforts in trying to patent nonsense. DET & Sonar6 had no invention. They didn’t spend 100’s of thousands of dollars inventing what they filed in their patent claims. These ideas probably originated in pub talk by founders or those who involved in those companies. Again, this sort of pub talk invention of ideas (DET and Sonar6, etc…) cannot be equated to invention that huge amount of money & manpower were involved such as those done by Microsoft, IBM, Navman, Orion Health, etc…

    You’re argument is to stop the nonsense software patents which to you that all software inventions must be free-lunch. You equate everything as the same in software. The efforts of hobbyists (open-source movement folks) is no difference to the efforts of top-notch researchers from academic institutions & corporate according to you. Your argument failed when you see companies paying huge amount of money to do original research on their behalf, e.g.: Navman, Orion Health and others. Some of Orion Health’s R&D had been done by University of Auckland, Computer Science researchers. Why do these companies want to waste money on doing R&D for something that is not worth protecting? They could just approach the open source community and hire some of those developers to do the job for them with much less money? The solutions they’re seeking are not going to come from the open source community. The open source community don’t have the know-how (technically) or expertise in those specific areas they’re seeking solutions in and that’s an undeniable fact.

    I was correct that your issues about throwing software patents out were not about innovation at all. It was about nonsense software patents that stop you from doing certain projects. It’s got nothing to do with innovations. Innovations has been over used by any one who is doing computer programming even writing a simple website is labelled by those programmers as innovative work, while in fact true linguistically, it is not true technically. Everyone & anyone out there can write a website, but not everyone can invent cutting-edge algorithms. WHY? They’re bloody hard to do or to crack. It can take months or years. In other words, R&D based companies such as IBM, Microsoft, Google and others will have to spend lots of money trying to crack even a single algorithm.

    I completely agree with NZ Racing Board in that the Patent Bill should & must give greater opportunity to review and oppose patents before they were granted. In this way, nonsense claims (i.e., pub talk invented software ideas & the likes – including patent trolls) must be weeded out before being granted. Mike O’Connor mentioned electronic voting as someone had patented it somewhere, which I agree that it is patent troll. It should have never been approved or granted. It is the nonsense & pub talk invention that I am talking about here. Again, do not equate this electronic voting patent nonsense to the invention that AUT researchers had done on behalf of Navman for their speech-command car navigation system. They are not the same. One needs protection (Navman’s invention), the other one (the nonsense electronic voting patent) doesn’t. Can you see my argument here? Or you still think that it doesn’t matter whether one spends millions on R&D to invent new algorithms, they’re all the same. They’re all software invention (e.g., Navman’s or Microsoft efforts) according to you and your lot which is no difference to the stupid electronic voting patent. They (i.e., all software patents) must be abolished.

    I hope that you & your anti-software patents’ crew can separate the wheat from the chaff, because I can see that your crew just regard everything software as chaff, i.e., they cannot differentiate the hard work and huge amount of money that companies like Navman, Microsoft, IBM, Orion Health, etc,.. had poured into R&D to invent something new and patent troll as DET who invented their ideas in a pub conversation (perhaps by the founders) over 2 pints of beers (costs approximately $20).

    Don said…
    I stopped replying to you is that I long ago concluded you were a bit of a troll.

    Don, I think that the reason you stopped replying to me is that I argue most of the times based on published facts. Certain people that I debate with, certainly cannot reply to the argument that I put forward, simply because they have to find other published facts (or studies) to use as counter-argument only to realize that they can’t find one. So, you should separate being a troll and being a reasoned argument person. People will often call others troll if they can’t put forward a counter-argument to refute the original argument. In other words, it is an evasion of trying to confront an argument.

    Finally, I support tightening of the patent bill (relating to software inventions), but I don’t support of blanket abolishing of software invention patents.

  30. Falafulu Fisi says:

    There is one point that I want to add here and perhaps it’s related to what you have said above about Microsoft. I believe that they (Microsoft & others) too are involved in patent trolling, however, this is not a good reason to throw out the baby with the bath water. The patent bill should be tightened as I said in my previous comment so that when companies like Microsoft, IBM and the likes do try to patent nonsense, then that should be opposed as all costs. However, when they file patents for new algorithms they have invented which are new (ie, it has never been done/invented before anywhere in the world), then that should be allowed so that wheat must be separated from the chaff.

  31. StephenR says:

    I stopped replying to you is that I long ago concluded you were a bit of a troll.

    For a guy to put as much effort into writing and linking to other pages as FF does to be called a TROLL – you have to be kidding or attempting to redefine what a ‘troll’ is.

  32. Matt Adams says:

    I agree with Falafulu and StephenR.

    I think Falafulu posed a good question. He asked for examples of third party patents that have stifled innovation. Don needs to provide more details.

    Take the election system patent threat for example. I think Don should provide:
    – the NZ patent number;
    – his claim interpretation analysis;
    – his assessment of whether his activity fell within the scope of any one of the claims;
    – his validity assessment of the relevant claim scope; and
    – his assessment of available workarounds.

    Why the interest? Simon Power did not back exclusion of software from the Patents Bill, despite what this blog’s author says. Instead, he backed the changes proposed by the Commerce Select Committee. He stated that the “Government believes the Committee has dealt with the issue in a sensible manner and has found a reasonable solution”.

    Committee chair Lianne Dalziel states “one of the major arguments was that patenting computer software will stifle innovation in New Zealand”.

    Good decisions and reasonable solutions are based on facts. Bad decisions are based on an absence of or an exaggeration of facts.

    The argument about stifling innovation was pivotal in the decision reached by the Committee. The argument is quite rightly under scrutiny. Let’s see some facts to support the argument. Starting with the election system patent threat.

  33. Clare Curran says:

    Actually Matt, he said yes when I asked whether he reiterated support for the exclusion of software from the Patents Bill.

  34. DonChristie says:

    The efforts of hobbyists (open-source movement folks)

    See? Troll, right there. Could have been written by Microsoft.

    Matt Adams. Glad to see you commenting in public. I certainly heard AJPark give plenty of voice to the sort of commentary FF is giving to the select committee. So they were hardly unaware of these arguments.

    When I emailed you about this topic in September last year, inviting you to discuss patents with the open source community you indicated to me that you did not see it as AJPark’s roll to advocate for a particular position on s/w patents. Rather that you represented a broad range of client interests, some of whom believed in s/w patents some who did not. Indeed, you turned down the offer to discuss the topic with us on that basis.

    So, I wonder why AJPark *now* has a position and why some of your clients are making the claim that your arguments didn’t have a voice last year?

    As far as specific patents go I won’t be drawn into fruitless arguments about what should or should not be patentable in each case, simply because the evidence is that PO scrutineers have consistently proven themselves as incapable of doing that. That said, if you and FF really want to pull apart a patent on this forum have a look at:

    NZ patent application 536149

    and tell me whether this should stand under a different regime.

  35. Falafulu Fisi says:

    Don, the Microsoft patent 536149 you have stated above, should have been thrown out the door immediately once IPONZ received their application. That patent is the most nonsense I’ve ever seen. There was no invention in that patent claims. I think that the problem lies with staffs at IPONZ for approving nonsense rather than the idea of patenting software in general which is what you opposed. I think that we agree in stopping nonsense from being granted. What we don’t agree on, is that I am an advocate for protection of research-driven knowledge-based patents, which of course something Microsoft and other corporations do. These types of inventions from R&D are the ones that I support being protected.

    Clare, what does your colleague David Shearer think about this issue? I believe that he is a proponent of industry R&D. Does he think that if the Govt, dosh out R&D funds to the software industry (i.e., collaboration with academics), and then those inventions are not worth protected? I like to hear his opinion, because I suspect that if Labour comes back to govt in the next 2 elections, he will be pro-protection. He (as a Labour minister) will definitely want to see taxpayer dollars going into R&Ds for software industries, being protected via patents. Why gifted taxpayer dollars to software industry and then not protect them? Just curious of what he thinks.

    No, offense to Don, but the software development that his company and similar ones like it, to the best of my knowledge had never funded R&Ds to be conducted at Universities. These R&Ds are the ones that I am supporting if they want to file a patent. See, this is an issue that Don doesn’t understand. I suspect he equates everything software inventions as the same. However, my whole point in this debate is that I am opposed to nonsense, exactly as the NZ patent application 536149 that Don mentioned above.

  36. Falafulu Fisi says:

    Here is an interesting quote from Prof. John Hosking of Auckland University Computer Science Department, from a few years ago in a Herald Article (By Simon Hendery):

    John Hosking, professor of applied computer science at the university and a driving forces behind Extenda, says one problem is that senior technology staff in New Zealand businesses tend not to have post-graduate or often even degree qualifications. As a result, the companies they work for, while often successful at selling a single idea, can struggle when it comes to continuing to grow through innovation.

    “Although they [the technology managers] are bright and innovative, they haven’t been exposed to research methods as you would through doing a masters or PhD,” he says.

    “We’d like to open their eyes to what research can do to make companies grow quicker. Obviously we’d be interested in helping them do that research – we’re quite open about that – but the name of the game is to raise a research culture within their companies, and allow them to grow quicker, be more innovative and avoid this one-product wonder trap that they get into.”

    Prof. Hosking is right. Long term competitiveness comes from high quality knowledge-driven researches. And why would anyone spend huge amount of money in this type of knowledge-driven researches if they feel that the fruits of those can’t be protected?

    The last time I talked with Prof. Hosking, was about mid-year last year (2009) at his office. He told me some local companies that the (Computer Science) Department had done some R&Ds for them in the past and there are some companies who are still making contact with them seeking solutions to particular problems they face in their software product development.

    Protection should be applied to software inventions originated from the type of R&Ds mentioned by Hosking in that Herald article. Anything other than that (the nonsense ones) is not worth protection.

  37. Falafulu Fisi says:

    The following guest post at NOT PC blog from a US patent attorney may be of interest to this discussion.

    Confusing the Property Right with the Implementation of the Property Right

    PS : If anyone here wants to ask a question to Dale Halling (blog post author), then please drop/post a message on that thread, perhaps Dale can answer.