Software patents may be allowed in New Zealand after all

US lawyer's blog cites NZ email suggesting ban won't be total

Software patents, apparently on the way to being ruled out for New Zealand after a Select Committee decision on the Patents Bill, might not be completely excluded after all.

The committee earlier this year inserted a clause in the second-reading copy of the Bill [Section 15(3A)] reading simply "a computer program is not a patentable invention."

On June 9 there was a meeting between Ministry of Economic Development (MED) officials and a delegation of local and international software companies led by Brett O'Riley of industry lobby NZICT Group.

A US patent attorney's blog reproduces the text of what it says is an email from O'Riley: "In summary, the MED confirmed earlier statements from Select Committee members and MED officials that the intent was to follow European law (even though this is not mentioned in the Commentary to the Patents Bill). The MED acknowledged that amendment is required to achieve this and that the Minister (Commerce Minister Simon Power) supports finding a reasonable way forward on this point before proceeding with the Bill."

European Law, however, is still rather inconclusive on the matter. The European Patent Convention on its face excludes software patents but the European Patent Office has been granting them. An attempt to resolve the question last month foundered.

Shortly after the blog, by Minneapolis patent law firm Schwegman, Lundberg & Woessner, was detected by local patent-watchers, it disappeared from the internet, but screenshots and a transcript have been preserved.

MED spokesman Warren Hassett says that blog is "not entirely accurate"; there has been no reversal, rather he and colleague Rory McLeod clarified the intent of the Committee's amendment, "which is evident if you read the full text of their report". The NZICT and software company representatives, he says, "went away happier, but not entirely happy"; they, as recorded in the blog, would have liked to see the exclusion taken out altogether, Hassett says.

While there is still some friction between pan-European and national authorities on the situation in Europe, the basic principle is clear and can be followed, Hassett says. If software has a "technical effect" -- if it controls a piece of machinery, for example -- it will be patentable, subject to the usual criteria of inventiveness and originality, but if it "just changes figures on a screen or data on a disk" it will not.

He acknowledges that software that changes the operation of the computer itself -- presenting an easier-to-use interface or improving disk access performance, for example -- would be a borderline case.

Local commentators on Twitter have reacted negatively to the development, seeing a back-door approach by NZICT and the international software companies that are its prominent members, when NZICT had not itself made a submission to the committee.

The meeting with MED, according to the blog, included representatives of Microsoft and IBM, as well as local company Pingar and a written representation from another local developer, Aptimize.

Replying to Computerworld's initial story and this reporter's Twitter summary of the MED point of view they argue that the select committee's report cannot be interpreted as MED now wishes to; the statement 'a computer program is not a patentable invention" is unequivocal, says NZ Open Source Society president Don Christie.

The committee's report does consider the question of "embedded" software, of the kind that controls machinery but, as reported in our original story, the committee backed away from clearly carving it out as a separate, patentable class.

"After careful consideration we concluded that developing a clear and definitive distinction between embedded and other types of software is not a simple matter; and that, for the sake of clarity, a simple approach would be best," the report says.

"We received advice that our recommendation to include computer programs among the inventions that may not be patented would be unlikely to prevent the granting of patents for inventions involving embedded software," the committee added.

The NZICT meeting with MED included representatives of Microsoft and IBM, as well as local company Pingar and a written representation from another local developer, Aptimize.

O'Riley says NZICT had not originally made a submission to the select committee because it did not expect the question of software patents to emerge. When it did "we were surprised and asked for the clause to be repealed. It was clear that wasn't going to happen, so I asked for a meeting with MED."

There is nothing unusual about this, he suggests; "we meet regularly with a number of government agencies."

The industry party ran through examples of software from Pingar, Aptimize and others and the meeting concluded, informally, that those would have enough of a "technical effect" and sufficient inventiveness to be patentable, O'Riley says.

"They're not IPONZ [the Intellectual Property Office of NZ] so that opinion's not definite" but the party left feeling more confident, he says. The campaign for software patents is unlikely to be pursued further.

O'Riley presented a report from the meeting to the NZICT board "and someone there must have passed it on" which is presumably how it ended up on the lawyer's site, he says. The blog thanks Paik Saber of IBM for "relaying this information".

"There was nothing there that was at all confidential", says O'Riley.

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Stephen Bell

Computerworld New Zealand

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