Long running software patent debate looks close to resolution

In writing about the computer industry, particularly in a seat of government (and I've worked in London and Wellington) one of the most persistent themes is the law and how it deals with the new concepts, new artefacts or new ways of doing familiar things that technology frequently creates."

Among the many instances of this to emerge in recent years is the application of intellectual property laws. The knotty problems of copyright and new forms of copying is one issue, but an equally prominent debate has centred on the patentability of software.

Patent used to be a comparatively straightforward matter; it applied to inventions -- ideas that had material expression in the form of a new machine or device that affected physical things.

If, on the other hand, you wrote or drew something original -- a literary or artistic work or a textbook -- protecting it was the province of copyright, which prevented others from imitating only the precise mode of expression of the idea -- or something so close to it that it had obviously been produced by adaptation from the protected original.

Patent, by contrast, protects the idea itself.

Then computer technology produced software -- which became an increasingly important component of any computer system. Here was essentially an idea expressed as a piece of text, but which could behave -- or rather induce the computer to behave -- as though it were a new kind of machine.

Should an original piece of software be protected by copyright or patent?

The cases for and against

The problem emerged into prominence in New Zealand with the tabling of the Patents Bill, in mid-2008. When the Bill came before a select committee, some local software developers, particularly champions of open-source software, began to campaign for freedom of software from patent.

The law having been silent on the question (the existing Patents Act dates from 1953) a number of software products or components of them had been patented over the years. The anti-patent developers suggested patent is damaging to the software industry, which subsists to a great extent on adapting the ideas of previous inventors as an element of new products.

This is particularly pertinent to the open-source community, whose software products are habitually shared and adapted. Prominent in the opposite corner, in favour of patent, are international creators of proprietary software such as Microsoft, whose corporate affairs manager Waldo Kuipers frequently drew Computerworld's attention to pro-patent arguments and legal cases whenever he felt we might be drifting too far in the opposite direction.

However, the divide is not that straightforward, with some successful local innovators outside the open-source camp coming out against software patent. Orion Health CEO Ian McCrae has said patent is not the way to encourage innovation. If Orion relied on chasing up patent violations in order to keep its competitive edge, "we would have to change the nature of our business and become a patents company," he says. "We are a software company. Our best protection is to innovate and innovate fast."

A patent may gain some short or medium-term protection, "but companies can't patent their way to success," McCrae told Computerworld in April 2010.

The anti-patent lobby prevailed with the select committee, which, in March 2010, issued its report, recommending the amended Act include a clause stating simply "a computer program is not a patentable invention".

The pro-patent developers were clearly wrong-footed by the move and embarked on considerable correspondence and at least two meetings between officials of the Ministry of Economic Development and representatives of the pro-patent companies and associations NZICT and the Business Software Alliance. The software patent champions sought to remove the software exemption clause, arguing that a blanket exclusion "does not achieve what was intended", is inconsistent with the laws of major trading partners and "sends a message that software innovation is not valued".

Then NZICT CEO Brett O'Riley said after the meeting the association had not originally made a submission to the select committee because it did not expect the question of software patents to emerge -- despite agitation from anti-software-patent lobbies more than a year earlier. 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", O'Riley told Computerworld in June 2010.

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

The injection of doubt and opposition signalled the start of an elaborate attempt, led by the Intellectual Property Organisation of NZ (IPONZ), to define the kind of software on which patents might be justified and the kind which should not have the right to be patented. IPONZ produced a set of "guidelines" on the subject, which commentators from both sides were quick to point out would have no legal force.

What IPONZ and government officials were trying to pin down was a dividing line between software that only manipulates data and the kind often referred to as "embedded" software, which has an effect on and is an integral part of a physical piece of equipment.

The latter, most sources conceded, was not practically different from an invention consisting entirely of physical components and the whole invention, including the software, should be patentable.

Submissions on the guidelines picked holes in the description. One, from the Airways Corporation, pointed out that its air-traffic control software had the undoubtedly physical effect of preventing aircraft colliding; but because it achieved that purpose purely by manipulating data, it would presumably not be patentable.

US alignment

A persistent background to the patent debate, as it is with the copyright/file-sharing question, has been the merit of aligning with US law and the possible role of such an accommodation as a bargaining chip in free-trade agreement negotiations.

Coincidentally the position of software patent in the US legal system now looks a little less certain following a recent Appeals Court ruling.

Much software has been patentable under US law but the rejection in May this year of a patent for a computer-based platform for reducing risk in financial trading between two parties, a system known as Alice, is seen by legal commentators as having cast doubt on the basis of many existing and planned software patents.

The NZ Patents Bill went through its second reading in September last year, with debate concentrating on the software clause. The major potential confrontation was deferred for the committal stage with rival Supplementary Order Papers proposed by the Bill's sponsor, Craig Foss and Opposition ICT spokesperson Clare Curran.

Foss proposed introducing the phrase "as such" to qualify the kind of software that would not be patentable. This phrase has struck problems in European legislation, where it has been used to let through a number of software patents. Curran's SOP would have sought to keep the unvarnished non-patentability of "a computer program" in a slightly modified form.

However, after discussions with the industry, Foss filed an amended SOP. This keeps the phrase "as such", but defines it more tightly. "A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program," it says.

This has met with approval from industry sources such as the Institute of IT Professionals and NZRise, who were disquieted with the content of previous SOPs. It's likely that the Opposition too will accept the new SOP, allowing the Bill to proceed to third reading and enactment.

*This article is one of a series of features looking back at major issues covered by Computerworld to mark the final print edition, published Monday July 1, 2013.