Pilcher on software patents

Pat Pilcher writes:

For technology to become a fully functioning cog in NZ’s economy, the way we treat intellectual property (e.g. the ideas and concepts behind the software, hardware and other innovation that underpins much of the tech sector) is critically important. In a nutshell, we’d better get our patent laws right or we may find local businesses involved in unwinnable patent fights against lawyered-up multinationals when they could be innovating, exporting and otherwise creating wealth for New Zealanders.

And the patent trolls.

The overarching aim is for the government to provide a balance between innovation and protecting public interests.

Achieving this is no easy feat, and already the bill is mired in controversy as Commerce Minister Craig Foss changed the wording of a clause within the bill which could have huge ramifications for New Zealand’s fledgling software industry.

His amendment has changed some crucial wording in the bill that some say has the government moving away from excluding software from being patented (as per select committee recommendations), to parts of the bill being sufficiently vague that software may indeed become patentable. Clause 10a of the supplementary order paper 120 was amended to read: “..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”

It might only be two words, but from a legal standpoint the addition of “as such” makes all the difference and could see kiwi companies being locked into protracted legal battles against multinationals whose lawyers are likely to emerge as the only real victors, whilst New Zealand could end up on the losing side.

I’m not sure how significant the two extra words are but personally prefer to err on the side of caution and leave them out.

Of equal concern, changes to the bill could see businesses that had invested in New Zealand pulling out. Geomechanica, a Canadian software company had planned to relocate to NZ because they felt that the original patent ban on software as proposed in the unmodified form of the bill would foster an innovation friendly environment. Sadly tweaks made to the patent bill could render a New Zealand business case untenable for them and others, depriving New Zealand of employment opportunities, potentially setting our digital economy back by decades.

According to AJ Guillon, co-founder of Geomechanica, “We have planned our products and marketing based on a relocation to New Zealand, exporting innovative software without the threat of domestic software . If the software patent bill passes with the “as such” wording, we cannot justify a relocation to a country with an ambiguous law on a matter that is so important to us.”

Seems like a good case for a clear law that is explicit that software can not be patented.

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