The debate in the second reading of the Patents Bill yesterday afternoon was intense.
At the heart of it was why Commerce Minister Craig Foss had made, what on the face of it, seemed like an ill-conceived decision to change the wording of a key clause which will affect our local software industry adversely. By moving away from a position which blankly said a software program could not be patented, he has qualified this hugely by adding the following:
..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 “as such” change opens to the door to big multinational corporates being able to take advantage of an ambiguous clause to dominate and stifle smaller innovative software developers in court.
Foss claims it won’t. Labour, the Greens and NZ First claim it will. We don’t know what the Maori Party, John Banks and Peter Dunne think yet. I hope they’ll look at it carefully and listen to local developers.
The Kiwi software industry certainly thinks it will affect them badly. They put together a petition and in just 4 or five days with almost 1100 signatures asking the Minister to reconsider. And it might be worth noting that among the 1100 signatories are some of our biggest software innovators; Jade, Orion Health and
Xero (PS: Xero didn’t sign, but their head of design did).
Now it emerges that, despite the on record commitments of previous Commerce Minister Simon Power since 2010 that the recommendation by the Commerce Select Committee to exclude software from patentability would stand, there were backroom meetings with the multinationals from the moment the Bill was reported back to the House, pressuring the Minister and officials to change their minds and open the door to software patentability.
Somehow the language used in Craig Foss’s amendment is precisely that requested by those lobbyists. This “as such” language both undermines the software exclusion to the point where software is, in fact, patentable, while at the same time it’s asserted to be the best language to implement a software exclusion? One of those positions is false. We know – and the pro-software patent lobby’s support for it is ample verification – that the “as such” wording will rapidly be used to circumvent the software patent exclusion.
Here’s the evidence. A blog post by NZICT, which represents those multinationals, including Microsoft and IBM specifically, requested that the Ministry of Economic Development change its language to that used by the European Patent Convention “because that language can easily be circumvented” and in effect undoes the software patent exclusion. The NZICT Group (claimed to have) had assurances from the MED that it was never the ministry’s intention to ban software from patentability in any case.
Note: this blog post has since been taken off the NZICT website. I wonder why?
Labour yesterday tabled this blog post in the House during the debate and raised questions about how this backroom deal was done and why the select committee’s intent had been circumvented and hijackedby the multinational’s agenda against the interests of our local software development industry.
It’s worth noting that the main MED actor in all of this is Rory McLeod, who is also the main IP negotiator on behalf of MFAT in the TPPA negotiations. Coincidence? I think not.
What does the government think it’s doing stifling our most important innovators. This is bloody ridiculous.
The Foss amendment now provides the pro-patent multinational lobby with exactly what they specifically requested in June 2010.
Yet somehow Foss and MED are trying to sell this as the most certain way to ensure a software patent exclusion. It can’t be both.
The Kiwi software developers vehemently oppose the Foss amendment because they believe that they will be vulnerable to multinational corporate patent suits on software inventions. This has proven the case in the European jurisdiction. There are hundreds of comments on the petition website from Kiwi software developers about this.
I have been contacted directly in the last few days by a Canadian software company which has planned to relocate to NZ because of the patent ban on software because it was a better environment in which to innovate.
I was told late last week about a synthetic biology start up which is a co-investment of $170m between NZ and Taiwan. It came about because NZ was seen as being proactive for digital start ups because of this Patent Bill sitting on our books.
In the US over the last 20 years, its been estimated that the cost to the US economy of patent litigation is half a trillion dollars. We don’t want the US system because it’s all about patenting this and that and patenting trolls who trawl the planet looking for inventions they can pretend to have ownership over. We don’t want the European system as it stands either. It’s the European system whose ambiguous “as such” has resulted in 30 years of expensive litigation, and has resulted in most software being patentable despite that being contrary to the spirit of the legislation.
What we want is a law that’s as clear and unambiguous as we can make it. That protects our innovators and allows the physical invention to be patented (such as a washing machine) but keeps the software code which runs the washing machine protected by copyright and not by patent.
The moment the prospect of patent litigation looms on the horizon, there’s only one group who benefits and that’s patent lawyers who can tie companies up in the courts for years. The big corporates don’t mind as they are protecting their market share and stifling competition.
Copyright adequately protects software development.
Software is lines of code, like music is lines of notes, or books are lines of text. Software is a collection of mathematical equations. In order to create new software you have to build on existing software.
Everyone – including National – has accepted that software patents should be excluded – I don’t think that’s being re-litigated here. What we need to take National to task for is the fact that the way they have chosen to implement the software exclusion won’t, in fact, work. Moreover, it appears that they’re consciously adopting the means for implementing it which fundamentally undermines their stated goal.
How can they claim, with a straight face, that the wording of the bill requested by the pro-software patents lobby – because it effectively reverses the exclusion – is the best way to exclude software patents? The same language can’t achieve both ends. It appears that, either due to incompetence or malice, the Minister and/or his advisors have adopted language which fundamentally undermines their stated aim of excluding software patents.
As I said in my speech in the House yesterday (9 minutes into this clip), we need to encourage our innovators not stifle them. Labour hopes the government will work that out before this Bill passes.
Patents exists purely to provide an incentive for inventors to create for the greater good. Patents categorically DO NOT exist “to protect an inventor’s investment”. Given that the software industry has spoken decisively about the language it wants to use to implement the broadly supported ban on software patents, why not accept that these people have done their homework.
Given that they are the ones who will have to live with this legislation from day to day, let’s accept that the kiwi software industry has offered better language for the software patent exclusion than the pro-software patent lobby’s preferred language proposed by Foss’ ill-advised SOP.
That’s why I moved an amendment this week to follow this statement:
10A(1) A computer program is not an invention for the purposes of this Act.
My amendment simply says
10A(2): Subsection (1) does not prevent an invention that makes use of an embedded computer program from being patentable.
This means a computer software program is not patentable. Fullstop.
- Comms and IT Minister Amy Adams claims her portfolio has nothing to do with software and patents. Extraordinary as she claims to represent the software and IT industry.
- David Farrar on Kiwiblog has been very silent. Would love to know what he thinks