The software patent affair

Law firm Chapman Tripp has published an article criticising the Government’s decision to exclude software from patentability. While the article makes some valid points, it does not deal with some points fairly.

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.