IT professionals on software patents

Institute of IT Professionals CEO Paul Matthews writes:

 The latest example is last week’s Institute of IT Professionals poll where a resounding 94 percent of IT Professionals with a view favoured the Institute continuing to oppose software . Yes, 94 percent. And not a small poll either – over 1000 of our members responded.

That is a huge vote. It clearly shows that those at the coalface of IT, have a very united view on the issue of software patents.

So why do so many oppose software patents? One reason is that the last few years of software-patenting decisions means it’s now simply not possible to write software today without breaching patents. Many believe software patents represent the biggest threat to our profession since Turing kicked things off at Bletchley Park, as do the patent trolls; lawyers who increasingly make a living out of gaining patents on obvious things and suing successful technologists.

This is seen in the US a lot, with patent wars. In the IT realm, they have become about lawsuits, not innovation.

Another reason is the total unsuitability of the patent system to software. Imagine if Mary Shelley was able to patent the concept of a horror novel when she wrote Frankenstein, preventing all future horror novels that might compete with hers. It wouldn’t matter that Frankenstein was inspired by prior gothic novels such as The Castle of Otranto from 1764.

Like software, book genres and plot “inventions” are built on those that came before them. Allowing someone to take this prior work, box it up differently then gain monopoly rights preventing others from doing the same does nothing other than stifle innovation. Like with books, copyright does the job for software.

Think if you had patents over political policies. Political parties could sue each other for stealing their ideas!

During the second reading of the Patents Bill in Parliament Minister Foss stated “There has been no change to the select committee’s intention that computer programs should not be patentable” and repeated four times that under the SOP, a computer program will not be patentable. Four times.

So will the ‘as such’ wording mean that software can’t be patented in New Zealand as the minister apparently believes?

The patent lawyers certainly don’t seem to think so.

In commentary in the Law Society’s LawTalk magazine Barrister Clive Elliott writes that the proposed exclusion of computer programs “has been scrapped” by the minister’s SOP which “restores the status quo”.

A prominent IP lawyer Andrew Brown QC has written that the SOP “will effectively allow patentability of computer programs”. Attorney Doug Calhoun states that with the SOP there is “no real change in the law” and IT lawyer Guy Burgess states that the wording “fails to exclude software patents”.

In fact other than the minister’s advisers, we can’t find a single patent expert or lawyer who thinks the minister’s ‘as such’ wording will actually mean software is not patentable. We were also easily able to compile a sample of 150 seemingly pure software patents granted in Europe over the last 12 months under this wording and the number is likely far higher – some say as high as 30,000.

That is a good challenge. Is there a lawyer out there who thinks the “as such” wording will not lead to software continuing to be patented in NZ? Certainly many lawyers support the wording – but that seems to be because it will allow patents.

So has the government buckled under pressure from the US and decided to backtrack on the unanimous decision of the select committee? Do they now support the patenting of software against the wishes of the vast majority of the kiwi software industry? 

If so, we wish they’d just come out and say so.

Or have they simply stuffed up by suggesting adopting wording into law that has been proven overseas to have the exact opposite effect of what they intend?

As LV Martin used to say, it’s the putting right that counts. Circumstances change and the implications of the European decision from 2010 is only really becoming clear now. If it’s a stuff-up it’s easy to fix, minister. Simply remove 10A(2) and we’ll all sing your praises from the rooftops.

I think the Government may underestimate how strongly most of the ICT community feel on this issue. The 94% vote should ring warning bells.

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