Software Patents: 10 questions for the Minister

The Patents Bill is now hovering near the top of the Order Paper, and looks set to be voted on in coming weeks. While most of the new law is a Good Thing™, unfortunately the Government continues to ignore the calls from New Zealand’s local IT industry to undo its last-minute botch-up of the Bill and exclude software patents. Here’s a list of questions for Commerce Minister Craig Foss, whose one-line change to the Bill has so upset the local IT industry.

To the Minister:

  1. Is the Minister aware that legal experts have said that his last-minute “as such” amendment to the Patents Bill (SOP 120) reverses the exclusion of software patents as unanimously recommended by the Commerce Committee, and will result in “no real change in the law“?
  2. Why has Minister changed the Patents Bill in a way that, by his own admission, creates a “grey area” that will allow “hundreds of software patents” to continue to be granted in New Zealand?
  3. What benefit does the Minister see in deliberately introducing a “grey area” into important legislation, in particular in the much-litigated field of software patents which are causing so much harm overseas?
  4. Given that New Zealand software developers have overwhelmingly rejected the Minister’s amendment to allow software patents, and given that the previous Minister had confirmed that the original software patent exclusion would not be altered, in whose interest was the current Minister acting by amending the Bill to allow software patents to continue?
  5. Does the Minister accept that his last-minute change to the Patents Bill to allow (in his own words) “hundreds of software patents” is inconsistent with the unanimous recommendation of the Commerce Committee to exclude software patents (a recommendation which the previous Minister had said would not be changed), and why did he not refer the matter back to the Committee for proper consideration?
  6. Is the Minister aware of the numerous reports and studies confirming that software patents harm innovation and are “sapping billions out of the economy and crushing technology startups“, and if so, why has he amended the Patents Bill to allow software patents to continue to be granted in New Zealand?
  7. Why is the Minister ignoring calls from New Zealand’s IT industry, including the Institute of IT Professionals, InternetNZ, NZRise, NZ Open Source Society, and over 1,200 signatories to an industry petition, to protect New Zealand from the threat of software patents by removing his “as such” amendment to the Patents Bill?
  8. Is the Minister aware that an October 2010 MED report advised that no software patent exclusion, anywhere in the world and in any form, had ever been found to breach the TRIPS agreement, and that “there is no obligation for TRIPs signatories to provide patent protection” for software inventions; and if so, why has the Minister claimed that the “as such” amendment is necessary to compliance with TRIPS?
  9. Can the Minister give any assurances whatsoever to New Zealand software developers and software users that they will not be threatened or harmed as a result of any software patent granted in New Zealand under the new Patents Bill; and if not, why?
  10. Can the Minister confirm that the Government will provide financial assistance to help New Zealand software developers or software users defend against any future lawsuits brought by the holder of a software patent granted under the new Patents Act?

One thought on “Software Patents: 10 questions for the Minister

  1. Guy, as usual, this is stunningly incisive and I suspect provides our best hope for shredding Minister Foss’ obstinate refusal to reverse 10A(2) of SOP120. Superb work – thanks for presenting it this way for us (the NZ software industry).

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