Bevan Rudge JavaScript and web technologist

We did it! NZ is (very nearly almost) free of software patents!

"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.

— Commerce Committee's recommendation on the Patents Bill, Part 2, Patentable inventions (Emphasis mine)

While I support and agree with the commerce committee's conclusion and recommendations, I do not agree that the increasing popularity of open source software has anything to do with it, and I regret their use of the term "open source" and emphasis on open source software as the reasoning. Software patents are almost as impactful on proprietary software as they are on open source software. The main difference for open source software is simply that proprietary software license sales are centralised and the central enterprise is more likely to be able to play the patent game. Playing the patent game is usually an impossibility for open source software vendors. By contrast, open source software vendors are usually distributed and each generally generates revenue for itself by selling services – not licenses on behalf of a central enterprise.

Many people worked very hard to help NZ's members of parliament understand why software should be excluded from patentability. Including; NZOSS, InternetNZ, Guy Burgess, EndSoftwarePatents.org's wiki on software patents in New Zealand (supported by the Free Software Foundation and the Software Freedom Law Center), Egressive, Bevan Rudge (myself) and numerous other companies and software developers.

Others worked hard to preserve software patentability. There were two types of enterprises arguing the other side of the debate, with obvious motives that are inconsistent with the interests of New Zealanders and the people and companies NZ patent law is intended to protect;

1. Large software vendors and producers (which are all foreign) that already have patent portfolios, or can afford to assemble them. Patent portfolios are valuable business weapons used primarily by such organisations to mitigate patent threats from other large competitors (also wielding patent portfolios), and also to maliciously bully smaller competitors who cannot afford patent portfolios. Examples include Microsoft, IBM, Oracle and Novell.
2. Patent attorneys that work for companies (like those above) who seek and can afford to fight patent battles. Examples include AJ Park and Baldwins.

As for my own efforts Dave Lane, Jonathan Hunt and I met with Lianne Dalziel, Chairperson of the Commerce Committee and Labour Party MP and had a very productive discussion about the issue. We followed up with written and oral submissions. (Though I could not make the oral submission myself).

I also did a lot of research for, and maintenance of, the EndSoftwarePatents.org wiki on New Zealand and helped co-ordinate others' efforts through the NZOSS; particularly for written and oral submissions, and also meeting with MPs, what to write, what message to send and where to. Though a lot of that work has now been deprecated and is in the history archive for that wiki article.

But wait! The game is not quite over yet. There is still a (small) chance of parliament doing a "Tizard" on us. This is when parliament overrules the committee's recommended law and makes last-minute changes to the final draft of the written law and executes it, without time being made available for public comment. This is now referred to as "Tizard" in New Zealand's technology and intellectual property circles after Judith Tizard's controversial actions in early 2009, that rendered draconian section 92a copyright laws effective after they had already been removed.

We need to keep an eye out for this to prevent it, and react quickly and loudly if it happens. Keep an eye on TheyWorkForYou.co.nz, Legislation.govt.nz and the SWPat.org wiki article on NZ for updates.