The article claims:

The [software patent] exclusion was the product of intense and successful lobbying by members of the “free and open source” software movement… In its April 2010 report to Parliament on the Patents Bill, the Commerce Select Committee acknowledged that the free software movement had convinced it that computer programs should be excluded from patentability.

I’m sure this assertion of mighty lobbying power (the ability to sway an all-party, unanimous recommendation no less) would be flattering to any professional lobbyist, let alone FOSS supporters – if only it were true (it is not evidenced in the Commerce Committee report). A range of entities made submissions against software patents, including the statutorily independent University of Otago, InternetNZ, a number of small businesses (and my independent self, I modestly add). There were also submissions the other way, though interestingly the most submissions in favour of retaining software patents were from patent attorney law firms. It is also notable that other organisations including NZICT, which is a strong supporter of software patents and engaged in heavy after-the-event lobbying, did not make any submissions on the issue.

The article adds the comment:

The Committee said that “software patents can stifle innovation and competition, and can be granted for trivial or existing techniques”. The Committee provided no analysis or data to support that proposition.

The fact that a Committee “provided no analysis or data” to support its recommendations is hardly noteworthy – that is not it’s job. Submitters provide analysis and data to the Committee, not the other way around. The material in support of the proposition is in the submissions.

The article sets up an unfair straw-man argument:

Free software proponents reckon that software should be free and, as a result, they generally oppose intellectual property rights. They say that IP rights lock away creativity and technology behind pay-walls which smother innovation. Most authors, inventors and entrepreneurs take the opposite view.

I don’t claim to know what “free software proponents’” views on all manner of IP rights are, but when it comes to software patents in New Zealand, the evidence strongly suggests that the “authors, inventors and entrepreneurs” of software (FOSS or not) are opposed to software patents (see my posts here and here). This includes major companies, including NZ’s biggest software exporter Orion Health (see Orion Health backs moves to block patents).

While the New Zealand Computer Society poll showing 81% member support for the exclusion is not scientific, it is at least indicative. In any case, opponents of the new law (mainly law firms) have consistently asserted a high level of opposition to the exclusion without any evidence to support that view.

The article leads to the warning:

If New Zealand enacted an outright ban on computer-implemented inventions we would be breaking international law. … Article 27(1) of TRIPs says that WTO members must make patents available for inventions “without discrimination as to… the field of technology…”.

The authors rightly point out that breaching TRIPs could result in legal action against the Government by another country. However, that conclusion is premised on the basis that software is an “invention”. A number of processes and outcomes are not recognised as inventions for the purpose of patent law in different countries, including mathematical algorithms and business methods. The question of whether software is (or should be) an invention was commented on by a Comptroller-General of the UK Patent Office:

Some have argued that the TRIPS agreement requires us to grant patents for software because it says “patents shall be available for any inventions … in all fields of technology, provided they are…..capable of industrial application”. However, it depends on how you interpret these words.

Is a piece of pure software an invention? European law says it isn’t.

The New Zealand Bill does not say that a computer program is an invention that is not patentable. It says, quite differently, that a computer program is “not a patentable invention”, along with human beings, surgical methods, etc.

Article 27 has reportedly rarely been tested (twice in 17 years), and never in relation to software. The risk of possibly receiving a complaint under a provision (untested) of a multilateral agreement is not new. The New Zealand Law Society notes this in its submission on the Patents Bill (which does not address software patents):

The proposal to exclude plant varieties under [the new Act] is because New Zealand has been in technical breach of the 1978 Union for the Protection of New Varieties of Plants (UPOV) treaty since it acceded to it in November 1981.

What’s 30 years of technical breach between friends? Therefore, in fairness I would add a “third way” of dealing with the software patent exclusion: leave it as it is, and see how it goes (which is, after all, what the local industry appears to want). As I wrote last year, “Pressure to conform with international norms (if one emerges) and trading partner requirements may force a change down the track, but the New Zealand decision was born of widely supported policy …”

If the ban on software patents as it currently stands does not make it into law (which is a possibility, despite clear statements from the Minister of Commerce that it will), it won’t be the end of the world. In fact, it will be the status quo. There are pro’s and con’s to software patents, and the authors are quite right that New Zealand will be going out on a limb by excluding them. The law can be changed again if need be. In the meantime, I refer again (unashamed self-cite) to my article covering the other, and much more popular, ways of protecting and commercialising software.

“My decision follows a meeting with the chair of the Commerce Committee where it was agreed that a further amendment to the bill is neither necessary nor desirable.”

During its consideration of the bill, the committee received many submissions opposing the granting of patents for computer programs on the grounds it would stifle innovation and restrict competition… The committee and the Minister accept this position.

Barring any last-minute flip-flop – which is most unlikely given the Minister’s unequivocal statement – s15 of the new Patents Act, once passed, will read:

15(3A) A computer program is not a patentable invention.

Lobbying

It is clear that the lobbying by pro-software patent industry group NZICT was unsuccessful, although Computerworld reports that its CEO apparently still holds out hope that “[IPONZ] will clarify the situation and bring this country’s law into line with the position in Europe and the UK, where software patents have been granted”. Hope does indeed spring eternal: the exclusion is clear and leaves no room for IPONZ to “clarify” it to permit software patents (embedded software is quite different- see below).

As I wrote earlier, it remains a mystery as to why NZICT, a professional and funded body, failed to make a single submission on the Patents Act reform process – they only had 8 years to do so – but instead engaged in private lobbying after the unanimous Select Committee decision had been made. It also did not (and still does not) have a policy paper on the subject, nor did it mention software patents once in its 17 November 2009 submission on “New Zealand’s research, science and technology priorities”. It is not as though the software patent issue had not been signalled – it was raised in the very first document in 2002. Despite this silence, it claims that software patents are actually critical to the IT industry it says it represents.

The New Zealand Computer Society, on the other hand, did put in a submission and has articulated a clear and balanced view representing the broader ICT community. It said today that “we believe this is great news for software innovation in New Zealand”.

Left vs right?

Is there a political angle to this? While some debate has presumed an open-vs-proprietary angle (a false premise) some I have chatted with have seen it as a left-vs-right issue, something Stephen Bell also alluded to (in a different context) in this interesting article.

Thankfully, it appears not. The revised Patents Bill was unanimously supported by the Commerce Committee, comprising members National, Labour, Act, the Greens, and Maori parties. It reported to Commerce Minister Simon Power (National) and Associate Minister Rodney Hide (Act). Unlike the previous Government’s Copyright Act reform, post-committee industry lobbying has not turned the Government.

What about business? NZICT apart, the exclusion of software patents has received the wide support of the New Zealand ICT industry, including (publicly) leading software exporters Orion Health and Jade, which as Paul Matthews notes represent around 50% of New Zealand’s software exports. The overwhelming majority of NZCS members support the change. Internationally, many venture capitalists and other non-bleeding-heart-liberal types have spoken out against software patents, on business grounds.

Some pro-software patent business owners might be miffed at a perceived lack of support from National or Act, perhaps assuming that software patents are a “right” and are valuable for their businesses. The reality is that only a handful of New Zealand companies have New Zealand software patents (I did see a figure quoted somewhere – will try to find it). Yes, they can be valuable if you have them but that is a separate issue (and remember, under the new Act no one loses existing patents). A capitalist, free market economy (and the less restrictive the better) abhors monopolies, and this decision benefits the majority of businesses in New Zealand. Strong IP protection is essential in modern society – including patents – (see my article “Protecting IP in a post-software patent environment“) but the extent of statutory protection when being reviewed will always come down to a perceived balance, not just for the minority holders of a patent (a private monopoly) but for the much larger majority artificially prevented from competing and innovating by that monopoly.

I have always taken pains to note, like NZCS, that there are pros and cons to software patents. And I am a fan of patents generally. Patents are good! But for software patents, the cons outweigh the pros. There are sound business reasons to exclude them. This specific part of the reform targets one specific area, has unanimous political party support (how rare is that?), and wide local business support. The last thing it can be seen as is an anti-business, left-wing policy (if it was, I’d have to oppose it!)

Embedded software

Inventions containing embedded software will remain, rightly, not excluded under the Patents Bill. Minister Power confirmed that IPONZ will develop guidelines for embedded software, which hopefully will set some clear parameters for applicants.

Software is essential to many inventions, and while that software itself will not be patentable, the invention it is a component of still may be. Some difficult conceptual issues can arise, but in most cases I don’t expect difficulties would arise. This “exception” (if it can be described as such) will not undermine the general exclusion for software patents.

But let’s do a quick judge-and-jury exercise. Two relevant laws are sections 252 and 216B of the Crimes Act 1961.

Section 252, which is often misunderstood and is broader than many people may think, prohibits unauthorised access to computer systems. However, based on the reported information, Google’s collection of WiFi data did not involve any kind of “access”, and prosecution under this section is unlikely.

Section 216B prohibits “intentionally [intercepting] any private communication by means of an interception device”. This crime appears most likely to be the subject for any investigation. The key definition of this section is “private communication”, defined in s 216A (which the Law Commission rightly described as “not straightforward” – NZLC IP14, 10.47):

private communication:

(a) means a communication (whether in oral or written form or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but

(b) does not include such a communication occurring in circumstances in which any party* ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

It seems clear that Google’s activities amounted to “interception” by an “interception device”. Indeed, any cellphone, laptop computer, or even a tape recorder could be used for such activities and meet the Crimes Act definitions. But are WiFi transmissions “private communications”, as required under s 216B?

Let’s look at some known (or presumed) facts:

1. All of the data was collected from public locations, specifically from public roads.
2. The data was being actively transmitted into those public locations.
3. The data collected was unencrypted (if it turns out encrypted data was collected, things might change).

These facts seem to exclude Google’s activities from part (a) of the definition. How was there any indication that “any party to the communication [i.e. the collected WiFi packets] desires it to be confined” when the WiFi data was being broadcast, in unencrypted form, to the public? And how would Google or anyone else be expected to know that? The question whether the users to whom the data belonged knew it was being publicly broadcast is not the issue. The issue is that a publicly broadcast, unencrypted WiFi communication does not (in this juror’s opinion) give a “reasonable indication” that the person making it “desires it to be confined”. If anything, it conveys the opposite.

Of course, if the collected data is able to be reconstructed into a communication that indicates confidentiality, that could raise further questions. However, that is not known, and may well be beyond the intended working of s 216B.

Part (b) of the definition provides another hurdle, although as the Law Commission has noted, it is problematic. It excludes communications that a party “ought reasonably to expect” may be intercepted. Cribbing from the Law Commission’s recent report “Invasions of Privacy: Penalties and Remedies” stage 3:

In Moreton v Police, William Young J noted that while public awareness has developed over time that cellphone communications are not particularly secure, this does not automatically give rise to an expectation that any particular call will be intercepted. While the method of communication used and public awareness of its security levels may not be determinative on their own, they will nevertheless be relevant to whether at least one of the parties has indicated a desire that the communication be confined to the parties, and to whether there is a reasonable expectation (by both parties) that the communication may be intercepted. …

We anticipate that the main areas of enquiry by the courts will be whether the actions of the parties disqualify their communication from being a private one, and whether any particular method of communication disqualifies a communication from being a private one. By “the actions of the parties”, we mean their conduct of the communication itself; for example, whether they are talking in a private room where they expect no one else can hear them, or talking loudly in a public place.

Judge David Harvey has said that listening in to a conversation on CB radio, or using a police scanner, would not be offences because no-one could reasonably expect the communications to be confined.

Putting aside multi-party complexities for now, this reasoning is applicable to WiFi communications. Today, isn’t using unencrypted WiFi like talking loudly in a public place, or using CB radio? Is the “openness” of unencrypted WiFi well known enough to remove an expectation of privacy? Time will tell, but to some extent the Google situation has shown that could well be the case (not that a person is able to benefit from their own wrong, of course).

Another question is whether WiFi data actually constitutes a “communication” within the definition of s 216A. The comments noted above, and the definition, assume a communication between two or more parties using similar technologies, akin to a conversation. It may be arguable that random WiFi packets collected on a drive-by do not constitute a “communication” capable of falling within the definition of s 216A.

“Intention” is another fundamental requirement (both in the definition and for criminal offences). Did Google intentionally intercept the communications? Intention must of course be proved, and this may not be as straight forward as it appears, with Google now blaming a “rogue engineer” for the data collection.

Based on the information to hand, this jury returns a verdict of not guilty, but with a recommendation of a good public flogging nevertheless (ably led by the Privacy Commissioner), to last until Facebook returns to being Privacy Enemy #1.

The debacle could prove timely, given the Law Commission’s recent review of such issues and the possible law changes that may result. But for now, let’s hope the police do not waste valuable resources on what would simply be a pointless witch-hunt.

A requirement that a component of a government IT tender be open-source has sparked debate on whether such a specification is appropriate.

The relevant part of the RFP (for the State Services Commission) puts the requirement as follows:

We are looking for an Open Source solution. By Open Source we mean:

• Produce standards-compliant output;
• Be documented and maintainable into the future by suitable developers;
• Be vendor-independent, able to be migrated if needed;
• Contain full source code. The right to review and modify this as needed shall be available to the SSC and its appointed contractors.

The controversy is whether this is a mandate of open source licensing (which it isn’t). The government should not mandate open source licensing or proprietary licensing on commercial-line tenders. More precisely, it should not rule solutions in or out based on whether they are offered (to others) under an open source licence. The best options should be on the table.

The four stated requirements are quite sensible. As the SSC spokesman said, there is nothing particularly unusual about them in government procurement. These requirements (or variations on them) are similarly common in private-sector procurement and development contracts. In the public sector in particular though, vendor independence and standards-compliance help avoid farcical situations like the renegotiation of the Ministry of Health’s bulk licensing deal.

Open standards and interoperability in public sector procurement is gaining traction around the world. Recently, the European Union called for “the introduction of open standards and interoperability in government procurement of IT”. And in the recent UK election, all three of the main parties included open source procurement in their manifestos.

So why the controversy in this case? Most likely it’s the perhaps inapt use of the term “open source” in the RFP (even though the intended meaning is clarified immediately afterwards). The term “open source” is a hot-button word that means many things to many people, but today it generally means having code licensed under a recognised open source licence, many of which are copyleft. Many vendors simply could not (or would never want to) licence their code under such a licence, and it would be uncommercial and somewhat capricious for a Government tender to rule out some (or even the majority of) candidates based on such criteria.

However, it is clear that the SSC did not use the term in that context, and does not intend to impose such a requirement. An appropriate source-available licence is as capable of meeting the requirements as an open source licence (see my post on source available vs open source). The requirement for disclosure of code to contractors and future modification can be simply dealt with on standard commercial IP licensing terms.

A level playing field for open and proprietary solutions is the essential starting point, with evaluation – which in most cases should include open standards and interoperability – proceeding from there.

• Lib Dem manifesto focuses on ‘better’ IT procurement

“The Liberal Democrats’ election manifesto published today (14 April) called for improved government IT procurement, including the use of cloud computing and open-source software.”

• Tory manifesto: We will freeze new government IT spend

“The Conservative party has reiterated its plans to freeze major new IT spending and make changes in government procurement in its election manifesto… The Tories also pledged to create a “level playing field” for open source IT in government procurement, and to break up large IT projects into smaller parts to enable SMEs access to contracts.”

• Labour manifesto’s IT pledges: A triumph of hope over experience?

Labour repeatedly highlighted the importance of IT in its election  manifesto, which was launched today, but made few new IT-related promises.
The Labour Party stands on strengthening the digital economy, using open source in government IT …

• Election 2010: Pirate Party on tech (which deserves a mention as a tech-specific party!)

“Despite the name, the Pirate Party isn’t just about file sharing. Yes, it wants to ensure a right to file share, as well as format shift – such as moving songs from CDs to iPods, which is currently technically illegal. It also wants to cut copyright from 70 years to 10 and put labels on products to warn of the “defect” of DRM… On top of that, the party would ban spying on communications, end “compulsory ID cards” and toughen up data protection laws.”

More links on tech policies from: the SNP and Plaid Cymru, and the Greens.

Clearly, IT is figuring much more prominently in the upcoming UK election than in New Zealand’s last election in 2008. One reason is that the UK has suffered a number of major IT project blow-outs in recent years (such as the disastrous £12.7 billion NHS National Programme for IT) that have basically become minor election issues.

There are signs that technology is featuring more prominently in New Zealand’s political scene, though hopefully this will not be due to scandals over failed government IT projects.

However, the cynical last word must go to the Inquirer:

In short if you want to vote for someone on the basis of their enlightened IT policy you would be better off spoiling your ballot.

InternetNZ, the New Zealand Computer Society and the New Zealand Open Source Society issued press releases yesterday in support of the ban on software patents:

• InternetNZ agrees – no to software patents
• ICT Profession Supports Removal of Software Patents
• NZ Open Source Society Congratulates Government on Patents Bill Stance

The Labour Party also issued a press release supporting the decision and Minister Simon Power’s earlier endorsement:

• Software exclusion will encourage Kiwi innovators
• Power to delete software patents

Meanwhile law firm Chapman Tripp issued a press release criticising the decision:

• Excluding Software Patents Will Stifle Innovation

Privacy Commissioner slams Google’s “experiment”

New Zealand’s Privacy Commissioner, Marie Shroff, has criticised Google Buzz as being a “commercial experimentation on New Zealanders and other internet users, involving the release of significant personal information”:

[Google's actions] violated the fundamental, globally accepted principle that people should be able to control the use of their personal information.

The comments follow Ms Shroff’s signing of a joint letter to Google, stating:

It is unacceptable to roll out a product that unilaterally renders personal information public, with the intention of repairing problems later as they arise. Privacy cannot be sidelined in the rush to introduce new technologies to online audiences around the world.

These comments, including constructive requests that organisaions collects and process “only the minimum amount of personal information necessary” and create “privacy-protective default settings”, are admirable. Ms Shroff does a great job in standing up for New Zealanders’ privacy rights.

The difficulty, as I have written previously, is that people happily trade privacy for functionality. Millions of people willingly pour personal information into different websites every day. To what extent can Google be criticised for finding new, creative uses of information it has been willingly given, in accordance with terms agreed to by users? And to what extent is it necessary or right for governments to intervene?

Open standards in Government procurement

Earlier this year I commented that “the Government must properly mandate open standards and multi-vendor capable solutions for future state-sector IT procurement”.

European Union ministers have now called for “the introduction of open standards and interoperability in government procurement of IT”. This comes as part of an ongoing development of procurement frameworks.

The report states that some groups claim the proposal has been “so watered down due to intense lobbying by the proprietary software makers, to such an extent that the document will have no impact on the market”. Other industry groups have praised the proposals as “well balanced”.

We are of the view that there are significant advantages and disadvantages to removing patentability of software, and there are a number of significant considerations and issues that need to be addressed. However on balance, the Commerce Select Committee’s recommendation is one we support.

The letter goes on to give good reasons for the position. It concludes:

NZCS represents a broad church of ICT professionals and no doubt some of our members have different views on software patents (as with all things). However … the evidence certainly appears clear that software patents are simply too potentially harmful to our sector, and in fact innovation in New Zealand, to support. … People should have the option of commercial exploitation of their creations, however we believe this protection is inherent and appropriate in Copyright.

The word “potentially” is important here. While it is easy to point to the odd success story that might be linked to a software patent, it is much harder to justify the potential harm. The NZCS can be commended for taking a balanced position on this subject. As it takes pains to point out, there certainly are some benefits in software patents, and few people would argue otherwise. However, there are greater disadvantages.

NZCS has also conducted a survey of its members, showing “around 97% support for NZCS taking a stand, and approximately 80% in favour of us supporting the Commerce Select Committee’s recommendation that software patents be removed.”

Meanwhile, another industry group NZICT has issued a press release expressing concern about the proposal. Unfortunately, the press release does not set out any evidence in support of its position. It also makes the extraordinary claim that “the software industry has not been consulted sufficiently on this change”, despite an extensive consultation process running for over eight years, including the first round of industry submissions on software patents reported in November 2002.

• The CEO of the New Zealand Computer Society, Paul Matthews, says “on balance the evidence is clear that software patents are simply too harmful to our sector, and in fact all of New Zealand, to support. We were very happy to see Software Patents removed from the Bill and will be making it very clear to Government that we would be very disappointed to see them make an unwelcome return.”
• IP lawyer and former president of the New Zealand Software Association, Wayne Hudson, says that most of NZSA’s members can’t afford to “play the patent game”, and most members are “probably apathetic” to the issue.
• The CEO of Orion Health, New Zealand’s leading software exporter, Ian McCrae, supports the ban on software patents, saying the negatives outweigh the positives (Computerworld print edition, 12 April 2010).

Add to that the New Zealand Open Source Society (which has been the leading voice against software patents), other leading firms such as Catalyst IT, and numerous others, and it is clear that a very large part of the industry is either happy or apathetic about the ban on software patents.

The cross-party Commerce Committee (chaired by former lawyer, and opposition MP, Lianne Dalziel, and deputy-chaired by National MP Peseta Sam Lotu-Iiga, also a lawyer) unanimously recommended the ban, accepting the submissions in favour. The Commerce Minister, Simon Power (another former lawyer) says “the Government believes the committee has dealt with the issue in a sensible manner and has found a reasonable solution”.

So who is actually unhappy about this decision?

• Microsoft New Zealand, which says it is “concerned”, although it acknowledges it doesn’t actually do software development in this country;
• Microsoft partner Intergen (a leading NZ firm), which says it damages the industry [see comments section], although it was (by its own account) not interested in putting in a submission to the Select Committee (Computerworld print edition, 12 April 2010), and according to IPONZ does not hold any patents in its name or its parent company’s name.
• NZICT (whose Tier 1 members include major patent-holders Microsoft, IBM, and HP), though it appears not to have a policy position on this apparently critical issue, did not make a submission to the Select Committee, and did not mention software patents in its 17 November 2009 submission on “New Zealand’s research, science and technology priorities”.
• Patent attorneys AJ Park and Baldwins, both of which have filed software patents on behalf of international patent holders.

So, in the main, it appears that those unhappy about the decision are limited to the local subsidiaries of major international patent holders, their association (NZICT), and their local business partners. Their opposition is understandable. There are certainly some advantages to software patents to existing holders – but there are more disadvantages and other reasons not to allow them.

Banning software patents will align New Zealand with the European Union and remove a significant threat to the local industry. The general unavailability of software patents in the EU does not seem to have held back the IT sector in that region (or indeed the development of the internet itself). No compelling arguments have been put forward to indicate that New Zealand will somehow have a different experience after the new law takes effect. Instead, as the Select Committee unanimously found and the Government has agreed, the removal of software from patentability is a positive move, and one that has support across New Zealand’s IT industry.

Two patent-specialist law firms have criticised the Commerce Committee’s recommendation to ban software patents in New Zealand (read here and here). Both express surprise that the Committee appears to have accepted submissions by open source proponents, as if that alone is reason not adopt the report. The articles do not accurately represent this arguments, in my view, and the New Zealand Open Source Society has now provided a response.

While another says “stop wasting money on patents”

US intellectual property lawyer Erik Heels writes:

In most cases, filing a patent application is a waste of time and energy. Especially for startups. Your money and time would be better spent hiring programmers, marketers, and a sales force.

This is good advice for New Zealand businesses, especially tech start-ups. As Erik says, it can make sense in some cases, but at least consider the definite immediate opportunity costs versus the possible future benefits (and hidden costs to attain those benefits) of seeking a patent.

Historical legislation online

The Parliamentary Counsel Office has begun digitising historical legislation dating back to 1841, to be provided free online. Historical legislation doesn’t only have historical interest value, it can also have practical uses – such as providing a comparison to assist interpretation of current laws. While the first step involves simply scanning the old legislation (including the “shattering statutes“), longer term the plan is to OCR the documents into the excellent New Zealand Legislation website.

We recommend amending clause 15 to include computer programs among inventions that may not be patented. We received many submissions concerning the patentability of computer programs. Under the Patents Act 1953 computer programs can be patented in New Zealand provided they produce a commercially useful effect. Open source, or free, software has grown in popularity since the 1980s. Protecting software by patenting it is inconsistent with the open source model, and its proponents oppose it. A number of submitters argued that there is no “inventive step” in software development, as “new” software invariably builds on existing software. They felt that computer software should be excluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques. In general we accept this position.

It is great to see the committee has accepted the core arguments put forward by a range of submitters (including myself) and rejected the opposing views put forward against those arguments. The mention of open source is significant and quite likely the first time it has directly influenced policy.

The actual proposed amendment implementing the ban is straightforward:

15(3A) A computer program is not a patentable invention.

The committee has not attempted to define “computer program”, which is sensible and consistent with the use of that term in the Copyright Act 1994. The amendment is not wide enough that it will necessarily prevent someone attempting to dress up what would otherwise be a software patent application as a business method patent. But it will be highly effective in most cases, and should prevent the worst examples of software patents granted (or threatened) overseas from being replicated in New Zealand (e.g. 1-click).

The House will need to vote on the proposed changes to the Bill.

The committee also discussed embedded software:

While the bill would provide adequate incentives for innovation, however, we are aware of New Zealand companies who have invested in a significant number of software-related inventions, involving embedded software.* We sought advice on the approach
taken in other jurisdictions such as the United Kingdom and the United States, and whether legislation that would enable “embedded software” to be patentable might be practicable. 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. 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.

Software in any form would likely be caught by the proposed section 15(3A), but the final sentence of the above quote reflects the fact that it will not be possible, or practical, in many cases to separate the embedded software from an invention. It is important to note that the proposed Bill does not expressly endorse embedded software patents, but as with business method patents each application will need to be assessed on its merits.