In your May 4 story, “Battle over patents,” you state that New Zealand has taken the role of David and imply banning patents for software is a good thing. But whether or not software patents are a good thing depends on how the question is framed.

If you frame it by saying that Microsoft have made extensive use of patents to gain dominance in the software market, the reaction is that they are bad.
But if you frame it by pointing out that last year i4i, a small Canadian company, was awarded US$200m after successfully suing Microsoft for infringing i4i’s software patent then maybe they are not so bad after all.

In your May 5 story, “More spending on R&D needed: science adviser”, you reported on the evidence of the Chief Science Advisor to the science and education committee. In addition to advocating more spending on research and development, Sir Peter Gluckman also advocated that government policies should be supported by evidence-based, peer-reviewed and robust advice.

The Patents Bill currently before Parliament is a perfect case study illustrating why he is right.
The Patents Act 1953 has been in force for 55 years. The Patents Bill making the biggest changes since 1953, is based on policy developed from within the Ministry of Economic Development starting about ten years ago.

The policy development process involved circulating a discussion paper that set an agenda by asking questions along the lines of, “What do you think about this idea?” All the ideas were those of the MED policy advisors.

The overriding theme was this: 90% of patents are granted to foreigners; the benefits of these flow overseas; how can we limit this flow by making patents hard to get while still meeting our obligations under the relevant international treaties?

The public submissions were considered and the relevant ministers were than told that there had been a robust consultation and a Bill was drafted. That Bill is now awaiting the final rights before being passed into law.

The new law will make getting patents more expensive and prohibit patents for medical treatment and diagnosis as well as software. Sir Peter later advocated (this time to the health committee) updating the role of the Health Research Council in funding more research in the healthcare sector, particularly in clinical research; but the Patents Bill bans patents for inventions that might be made as a result of that research.

On April 22, the MED posted on its website a study it had commissioned from Uniservices asking what the link was between intellectual property and innovation and growth. In other words, MED commissioned an evidence-based study of what should be the basis for the policy underlying patent law and then published it three weeks after the last chance for public comment on the Bill.

Not only was the cart before the horse – the cart was half way into town before the horse was even out of the stable.

And what did the Uniservices report say? On pages 33 and 34 it concluded that patents facilitate partnerships between inventors and financial backers. They are particularly important for New Zealand, which relies on both foreign technologies and markets for domestic innovation. There is considerable evidence that the IP system facilitates both technology transfer and encouraging foreign direct investment in innovation.

The Uniservices conclusion is just about opposite to the MED policy driver behind the current Bill – patents are to be discouraged because their benefits will flow overseas.

And what of the software ban? Well, the select committee has had a bit of a bob each way. The amended Bill bans patents for “computer programs.” But the explanatory note says their intention is not to ban patents for “embedded software” – and then says trying to define the difference between the two was too hard, so the intellectual property office should be left to draft appropriate guidelines.

The Uniservices report says that its survey showed that there was a general awareness of intellectual property, but that awareness was not matched by an understanding of what IP was or its role in progressing science from the lab to the market place.

On the evidence of the Patents Bill, it looks like the policy advisors and the select committee fall into the aware rather than the understanding camp. If there is a national standard for policy advice – they could do a lot better.

Source:http://www.odt.co.nz/opinion/your-say/104714/software-patents-and-science-advisor