The NZOSS today announced its qualified support for the draft IPONZ guideline on the patentability of inventions containing embedded computer programs.
“There is a fog of misinformation around software patents and the IPONZ guideline,” says Don Christie, NZOSS Government Liaison Officer.
In July 2010, Commerce Minister Simon Power asked IPONZ to “develop guidelines for inventions containing embedded software.”
According to Christie, “We need to remember that the Minister did not ask for ‘guidelines to allow the patenting of some computer programs.’ ”
The invention is patentable subject matter, not any embedded software it may contain. As the Patents Bill states, “A computer program is not a patentable invention.”
“So we reviewed the guideline in light of what IPONZ was asked to do, not what some people think it ought to have been asked to do,” says Christie.
Embedded software has a widely-agreed meaning. “Embedded” means the system is attached to measuring devices (sensors) to read physical data from the world, and control devices (effectors) activated in response to changes in the data.
“Just having a physical effect is not enough to make a program embedded,” says Christie. “The physical effect must be a response to changes in the physical environment. Washing machines, robots that play soccer, and smart energy-efficient houses run embedded software.”
NZOSS recognises that expressing this idea in “patent-speak” is hard and commends IPONZ for the analysis that went into the guideline. It also commends officials for engaging with the community by releasing a draft guideline and inviting comments.
“When MED walked us through it, we found we were largely in agreement,” Christie said. “We went into the meeting thinking software that merely improves the operation of the computer itself could be patented under the guideline.”
On careful reading, the guideline makes it clear that efficiency gains are only a relevant test for inventions containing embedded software, not the operation of general-purpose computers. The guideline also distinguishes physical effects from logical effects — merely transforming or displaying information is not a physical effect.
NZOSS believes there is room to improve the guideline, to state explicitly that it applies to claims relating to inventions containing embedded computer programs.
“We understand their reasons for not using the word ‘embedded’ in a guideline for inventions containing embedded computer programs, but we’d like them to reconsider,” Christie says. “We also asked them to think about writing a plain English version that’s a bit easier to understand.”
NZOSS expects the guideline will bring certainty to New Zealand software developers that we can do our work without the risk of accidentally infringing somebody’s patent. “The risk will get lower every year, as existing New Zealand software patents expire,” says Christie.
“We believe the guideline says that if you can do something just by writing and running a computer program, it’s not a patentable invention,” Christie concludes.
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