Patents Bill Second Reading: A Software Storm in an Ideological Teacup


By guest blogger Doug Calhoun

Thirty years after the Muldoon government first looked at patent law reform, a new patent law is on track to come into force by the end of 2013. This guest blogger has been involved in working with and on the current act since 1974. And my reaction to the second reading debate?

“This is the way the world ends:
This is the way the world ends:
Not with a bang but a whimper.”

“The Hollow Men”

-TS Elliott

The bill runs to 165 pages with over 300 sections. It emphasises the goal of its authors to make it as difficult as possible to obtain a patent and as easy as possible for anyone to invalidate one. But the second reading debate: was based almost entirely on whether patents should be granted for software. And not a single Maori Party MP took part. Only Steffan Browning (Greens) mentioned that none of the Wai 262 Report recommendations on changes to patent law were implemented – even though the introduction of the Patents Bill was delayed from 1994 until 2008, largely because government concerns about the Wai 262 claim (hence my TS Elliott quote) – but that’s another blog post.

A Bit of History

The Patents Bill was introduced in 2008 by the then Labour government. The original bill did not have any software exclusion. In the policy development process, the MED officials had issued policy papers, considered submissions and recommended that there be no software exclusion. The practice of the Intellectual Property Office (following a decision of the Commissioner of Patents) was that if an invention involved software as a means to an end and it was novel and inventive then it could be patented; but if the software was an end in itself it could not be. This had been the practice since 1994. It was founded on old UK decisions that you could not get a patent for a mere mathematical formula – and software code itself is a form of mathematical formula.

In the select committee hearings most of the submissions on software patents came from software developers who were vehemently opposed to them. And the squeaky wheels got the grease. The committee introduced an amendment saying:

“A computer program is not a patentable invention”.

The committee reported in March 2010 and the bill sat on the Order Paper for nearly two and a half years until this month. The government then introduced a proposed amendment that qualified the exclusion. The exclusion would, “prevent anything from being an invention for the purposes of this Act only to the extent that a patent or an application relates to a computer program as such.”

The effect of the exclusion is that there is no real change in the law. Software as an end in itself is still not patent eligible; software as a means to an end still is patent eligible. That is the beginning and end of the effect of the words, “as such”.

But in politics reason is the first casualty.

The Second Reading Debate

The commerce minister, Craig Foss, stated that the intention of the select committee:

“was that granting of a patent should be prevented only where the novelty and inventive step lie in a computer program. In order to make the committee’s intention clear, and to avoid any doubt as to what is intended, I propose that the computer program provision be amended so as to provide that only computer programs as such are ineligible for patent protection.”

The opposition was adamant that the change had completely cut across and changed what the select committee had recommended. And the consequences were said to be putting the software development industry at risk.

Clare Curran was the lead Labour spokesperson. One example she gave of an industry at risk was the games development one:

“The chair of the New Zealand Game Developers Association said: ‘We’ve learnt how to make money from business models like digital distribution, freemium, virtual goods and crowdfunding. Exporting and acting global from day one have been key to the industry’s growth.’ Ninety-seven percent of Kiwi games were digital downloads, with low distribution costs and high margins. Ninety-nine percent of sales revenue came from exports, with the USA and Europe being the largest markets.”

The trouble with that example is that the New Zealand patent law is only applicable in New Zealand. So (on her quoted figures) only one percent of the games developers’ sales revenues would be at risk from infringing someone else’s New Zealand patents. Any sales made in the USA or Europe are still going to be subject to the patent laws there.

Trevor Mallard joined the fray:

“What has become clear over the last few days is that this Government has been captured. This Minister has been captured by offshore people who are involved in the software industry.”

What Trevor Mallard did not mention was that he was a member of a Labour cabinet that agreed to a cabinet paper (Review of the Patents Act 1953 – Stage 3, Part 1)

that included the paragraph:

“50. There are, then, no strong arguments for specifically excluding business methods and software from patent protection. In light of this, I consider that business methods and software should continue to be patentable as long as they meet the requirements for patentability.”

It could equally be argued that the select committee had been “captured” by the software development lobby. And it should be remembered that the select committee was chaired by Lianne Dalziel, also a member of the same Labour cabinet that could see no strong arguments for excluding software from patent protection.

No Software Patents Petition

The opponents of software patents are quick on their feet. They set up a website:and collected over a thousand digital signatures asking that the “as such” wording proposed by the government be replaced so that it says that the exclusion:

“does not prevent an invention that makes use of an embedded computer program from being patentable.”

The origin of that wording is in the select committee report where the committee expressed some reservations about the effect of the ban. While embedded computer programs are an example of inventions relating to software as a means to an end, they do not represent all such inventions – and the exclusion would not be of much assistance in making the more general distinction.

Clare Curran tabled the no software patents petition during the course of the debate. She also introduced a Supplementary Order Paper seeking to amend the government amendment exactly as proposed in the petition. And then her colleague, Mr Mallard, accused the government of being captured by an interest group – not the first pot to call a kettle black.

Those who signed the petition might well consider the complexity of making the distinction between software as an end in itself and software as a means to an end in this post by Australian blogger, Mark Summerfield.

The No Software Patents contains a space for comments as well as for signing. There are several recurring themes in the comments. Many petitioners are under the mistaken impression that the original Patents Bill was introducing software patents for the first time:

“The potential introduction of software patents in New Zealand critically threatens our ability to innovate in the information technology field.”

“It greatly disturbs me to think we may bring in software patents to appease the Americans with the TPPA.”

Others are under the mistaken impression that inventions related to computer code as an end in itself would be patentable:

“Computer software programs are essentially mathematical algorithms, i.e. methods to solve problems. If software were to be patented, then any thought process can be patented – an absurd situation.”

“Computer software is nothing more than design decisions mixed with algorithms.”

Many expressed concerns about the complexity and costs of enforcing patents in international markets. While these concerns are real, any change in New Zealand patent law is not going to have the slightest effect on the laws of other countries or the players that seek to take advantage of them there.

I am left with the same feelings as Ken Perrot in this recent post:

The Labour opposition has sided with an ideological ghetto that has not taken the time or effort to try to understand both sides of the debate on the worth of patents.

Patents and Innovation

Jonathon Young was the only speaker who talked about the positive role of patents:

“Recently it was announced that the Advanced Technology Institute is going to be set up and established. It will be named after Sir Paul Callaghan, one of our great scientists. He said that science could make New Zealand a better place, and that is such a true thing. We are focused on boosting growth and creating jobs, and you do not do that just by talking about it. You have to innovate, you have to invest, and you have to then commercialise those inventions and those products in order to get the financial gain from them.”

One of the man objectives of the Patents Bill is to ensure that quality patents are granted. A quality patent is one that claims an invention that is novel, inventive and of a scope that is fairly based on what is described. I know of no patent attorneys who do not strive to get quality patents for their clients. But the policy development and debate have been single minedly focused on how to make it more difficult to get a patent in New Zealand and how to make it easier to block patents from being granted and to overturn granted patents. What if the balance has been tipped so far against patents that very few innovators can be bothered, or afford, to get patents? The Paul Callaghan Institute mentioned by Mr Young will have to overcome the higher barriers being set by this law in order to fulfil its roll of transferring its inventions to the firms that will commercialise them.

What this country needs is a change in culture that embraces technology transfer – both inwards and outwards – as a path to improving innovation and thereby increasing productivity. And we need to acknowledge that patents are the currency of that technology transfer.

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About sticknz

sticK is by Peter Kerr, a writer for hire. I have a broad science and technology background and interest, with an original degree in agricultural science. My writing speciality is making the complex understandable. I am available for outside consultancy work, and for general discussions of converting a good idea into something positive
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6 Responses to Patents Bill Second Reading: A Software Storm in an Ideological Teacup

  1. drllau says:

    > It could equally be argued that the select committee had been “captured” by the software development lobby

    if 1 is an autocrat, 10 is a lobby, 1000+ is the industry saying the legislative wording is flawed?.I hope NZ still follows the democratic process, looking at the actual wording of the 2010 Select Committee …
    We recommend amending … to include computer programs among inventions that MAY NOT be patented. … [accept position] software patents can stifle innovation and competition, and can be granted for trivial or existing techniques … for the sake of clarity a simple approach would be best. We recommend the IPONZ develop guidelines for inventions containing embedded software

    > only one percent of the games developers’ sales revenues would be at risk
    See http://www.avc.com/a_vc/2011/06/enough-is-enough.html … the point is that patent exhaustion is not working. Despite Apple paying a license fee for their appStore, the entity is continuing to pursue developers. The recent Akamai v Limelight case the court ruled that even USERS of a portal could infringe. There’s even a patent for pop-ups on web browsers so every time your mouse hovers over a menu, you technically infringe. This is a direct result of what Bessen calls the NOTICE problem, it is mathematically impossible to avoid infringing (see http://www.techdirt.com/articles/20120309/04304018046/why-its-mathematically-impossible-to-avoid-infringing-software-patents.shtml)

    Making public policy only works if it can be reliably, credibly and feasibly administered. If the social costs outweigh the benefits, then why continue to endorse legislation which even overseas judges admit is problematic? http://www.theatlantic.com/business/archive/2012/07/why-there-are-too-many-patents-in-america/259725/ … I had a look at Mark Summerfield’s example. The social test is does the revelation of a trade secret justify a 20 year exclusivity? Or is it merely a defensive patent? If it is a defensive patent, then are we in a zero-sum-game of software patent arms race?

    >What if the balance has been tipped so far against patents that very few innovators can be bothered, or afford, to get patents?
    As someone who specialises in IP licensing, I can think of several ways to protect work without the need for a patent, ranging from crypto-softcore FPGA blocks, PaaS to franchising (of a business method). The free market is coming up with alternatives except that NPEs are using the legal rules to transfer wealth from the high tech industry (see Bessen’s paper on the cost of software trolls). Innovation comes from competition, not from accumulating dead-weight software patents. The reason why embedded chips can be traded is that you can deterministically determine the boundaries, and once sold, the patent is exhausted. The same cannot be said for software patents. Copyright is also deterministic, you can objectively define the boundaries through APIs (as the recent Oracle java case ruled). It is thus feasible to enforce public policy on IPR. Trade secrets can be kept forever, if a firm has established a lead over competitor, then if it NOT obvious, they will maintain that lead. So through the licensing mechanisms of copyright, trade secret and trade dress, software development work can be adequately secured. I admit there are a few exceptions (codecs, crypto-functions) where patents are clearly superior but the democratic process shows that the NZ software industry prefer to embrace the freedom to operate in return for giving up a statutory exclusion that is perceived as little instrinsic value.

  2. Doug Calhoun says:

    Drllau

    The democratic process followed in New Zealand for the passing of the Patents Bill began a long time before the select committee looked at it. It went through a discussion paper, a consideration of submissions and a recommendation accepted by the cabinet of the elected government at the time not to include any exclusion clause. The next stage of the process was the first reading debate. In that debate the then Labour opposition supported the bill as introduced and it went to a select committee. At that stage the software development sector very vocally raised their objections. Because the bill did not include any software exclusion, most entities that had participated in the policy development process before the cabinet decision did not make a submission on a policy that they understood to be settled. The select committee did not invite anyone who had participated in the democratic process before the cabinet made its decision (and did not make a submission) to respond to the submissions it had heard from the software development submitters.

    If there is any stage at which the process could be said to be undemocratic it was at the select committee stage. Business New Zealand said as much in its submission on the IPONZ guidelines that can be downloaded from the link:

    http://www.med.govt.nz/business/intellectual-property/patents/draft-guidelines-patents-involving-computer-programs/submissions

    This is the nub of what they had to say:

    “Therefore, BusinessNZ is perplexed as to how a process that started and continued
    through with a high level of consultation and considered views over the last ten years
    seems to have fallen at a crucial hurdle in a key area many considered would be left
    unchanged, as indicated during all stages of the consultation process up until the
    proposed Clause 15(3A) exclusion was introduced in March 2010. This has led to
    confusion and uncertainty for many in the business community.”

    Those affected by the change include many industries other than the software development industry. For example the dairy industry creates software implemented technology that is world leading. The produce packing industry, the meat packing industry and dozens of other are as potentially affected or unaffected as anyone in the software development industry. But they were denied a hearing in the select committee.

    Yes we have a democracy, and with the mixed member proportional system a very representative democracy. But MMP can get a bit messy at times. What will decide the software issue in the end will be the vote of the whole house on the SOPs at the committee stage and the vote of the whole house in the third reading. The select committee’s report was never the final stage in the process – it was always going to be subject to the remaining stages where it is considered by all elected MPs, not just those on the commerce committee.

    My point, to repeat, is that even if the Patents Bill went through with the select committee recommendation it would not have the slightest effect on the laws of the US, Europe of any other country and would not reduce the liability or risks of NZ software developers doing business there.

    The reply that Allan Main and I made to Judge Posner’s remarks is at the link (subscribers only):

    http://www.intellectualpropertymagazine.com/ipwo/doc/view.htm?id=309029&searchCode=H

    Another blog post rebuts the proposition at much greater length (see the 3 September article) at this link:

    http://ipfinance.blogspot.ca/

    Those are all perfectly good ways of making a buck out of an idea. And many software developers do perfectly well without them. But what this ban also does is attempt to impose a business model that you favour on businesses that would prefer to use patents as business tools in this country. And because those businesses operate in a democratic country they would like to continue to have freedom to choose to do so.

  3. Doug Calhoun says:

    — Peter, my previous reply lost all of the quotes from drllau (because I put a “” after each one. I hope this repy is complete. – Doug—

    Drllau

    [I hope NZ still follows the democratic process, looking at the actual wording of the 2010 Select Committee …]

    The democratic process followed in New Zealand for the passing of the Patents Bill began a long time before the select committee looked at it. It went through a discussion paper, a consideration of submissions and a recommendation accepted by the cabinet of the elected government not to include any exclusion clause. The next stage of the process was the first reading debate. In that debate the Labour opposition supported the bill as introduced and it went to a select committee. At that stage the software development sector very vocally raised their objections. Because the bill did not include any software exclusion, most entities that had participated in the policy development process before the cabinet decision did not make a submission on a policy that they understood to be settled. The select committee did not invite anyone who had participated in the democratic process before the cabinet made its decision (and did not make a submission) to respond to the submissions it had heard from the software development submitters.

    If there is any stage at which the process could be said to be undemocratic it was at the select committee stage. Business New Zealand said as much in its submission on the IPONZ guidelines that can be downloaded from the link:

    http://www.med.govt.nz/business/intellectual-property/patents/draft-guidelines-patents-involving-computer-programs/submissions

    This is what they had to say:

    “Therefore, BusinessNZ is perplexed as to how a process that started and continued
    through with a high level of consultation and considered views over the last ten years
    seems to have fallen at a crucial hurdle in a key area many considered would be left
    unchanged, as indicated during all stages of the consultation process up until the
    proposed Clause 15(3A) exclusion was introduced in March 2010. This has led to
    confusion and uncertainty for many in the business community.”

    Those affected by the change include many industries other than the software development industry. For example the dairy industry creates software implemented technology that is world leading. The produce packing industry, the meat packing industry and dozens of other are as potentially affected or unaffected as anyone in the software development industry. But they were denied a hearing in the select committee.

    Yes we have a democracy, and with the mixed member proportional system a very representative democracy. But MMP can get a bit messy at times. What will decide the software issue in the end will be the vote of the whole house on the SOPs at the committee stage and the vote of the whole house in the third reading. The select committee’s report was never the final stage in the process – it was always going to be subject to the remaining stages where it is considered by all elected Mps, not just those on the commerce committee.

    [the point is that patent exhaustion is not working.]

    My point, to repeat, is that even if the Patents Bill went through with the select committee recommendation it would not have the slightest effect on the laws of the US, Europe of any other country and would not reduce the liability or risks of NZ software developers doing business there.

    [why continue to endorse legislation which even overseas judges admit is problematic?]

    The reply that Allan Main and I made to Judge Posner’s remarks is at the link (subscribers only):

    http://www.intellectualpropertymagazine.com/ipwo/doc/view.htm?id=309029&searchCode=H

    Another blog post rebuts the proposition at much greater length (see the 3 September article) at this link:

    http://ipfinance.blogspot.ca/

    [I can think of several ways to protect work without the need for a patent, ranging from crypto-softcore FPGA blocks, PaaS to franchising (of a business method).]

    Those are all perfectly good ways of making a buck out of an idea. And many software developers do perfectly well without them. But what this ban also does is attempt to impose a business model that you favour on businesses that would prefer to use patents as business tools in this country. And because those businesses operate in a democratic country they would like to continue to have freedom of choice.

  4. drllau says:

    > If there is any stage at which the process could be said to be undemocratic it was at the select committee stage.
    When I get presented with new facts, I can change my opinion. Bessen’s empirical research showed that there was a shift in patent litigation post dot-com bust and accelerated post-GFC. 2010+ was just when the NPEs purchased failed companies and started hitting on the high-tech industry. If you see a storm coming, would you shout a warning to all at the time or batten down the hatches and hide? However, if you can present evidence of local support to revert back to a European model (http://www.burgess.co.nz/law/qc-confirms-as-such-will-allow-software-patents/), then reconvening a Select Committe is well within the ambit of the Commerce Minister.

    >would not have the slightest effect on the laws of the US, Europe of any other country
    But under the territorial principle of patents, would protect ALL local developers and industries. Think of it as a digital ACC, we can either have a no-assertion by legislative fiat, or go down the American model of medical misadventure (and/or malpractice). And this would still be technically not uncompliant with TRIPS (http://www.burgess.co.nz/law/software-patents-and-trips-no-worries/) though personally I reserve judgement as the interaction of IPR, international jurisdiction and competition law is non-trivial. And it is curious you mention the diary and ag sector as I’ve personally spoken with contract developers for companies in this industry who signed the industry petition.

    > But what this ban also does is attempt to impose a business model that you favor on businesses that would prefer to use patents
    And business is subject to laws which are (or should be) guided by public policy considerations (and I’m neutral on business model so please don’t put words in my mouth). That freedom of choice is already being exercised with at least one Canadian company wanting to relocate to NZ because of its “progressive” stance. (http://www.iitp.org.nz/newsletter/article/313). The report of the Select Committee was endorsed by all the parties at the end of 2011. And I return to my core assertion that public policy for NZ, balancing the social costs to wider society v private benefits that supposedly pass into public domain, should be reliably, credibly and feasibly administered. And since I’m very much in financing of IP, I believe a legal property system requires certainty of subject, which currently is not expessed well by software patents.

  5. Doug Calhoun says:

    drllau

    [However, if you can present evidence of local support to revert back to a European model … then reconvening a Select Committee is well within the ambit of the Commerce Minister.]

    I refer you the 36 submissions made in 2011 on the IPONZ draft guidelines for implementing the select committee’s new clause 15 (3A). The link is:

    http://www.med.govt.nz/business/intellectual-property/patents/draft-guidelines-patents-involving-computer-programs/submissions

    I have just finished reviewing them and by my count 4 supported the amendment, 3 did not express an opinion on clause 15 (3A) itself and 29 opposed clause 15 (3A) as written.

    Intergen/GZ2 expressed concerns similar to those of Business New Zealand (see my comment above) about the unfairness of the select committee process:

    “The genesis of the Guidelines is the introduction into the Patents Bill of clause 15(3A). While consultations on the Patents Bill have been underway for many years, the introduction of this clause has occurred very late in the process. Clause 15(3A) has a direct negative impact on our businesses and indeed many small and medium sized New Zealand businesses. The clause appears to have been introduced as the result of a large volume of co-ordinated submissions. That the select committee would accept that there is, prima facie, no “inventive step” in software development does not cast our industry in a particularly positive light. We believe that given the significant effect that this late change will have on a key sector of the „knowledge economy_ it was beholden upon the committee to actively seek out balancing views from stakeholders who will be affected. To date they have not done so.”

    [But under the territorial principle of patents, would protect ALL local developers and industries.]

    Could you explain what territorial principle of patents would protect NZ software developers who sold over the Internet a digital product in the US from being sued in the US if that product infringed a US patent? (RMI did not succeed in its defence when it pleaded that the use of its Blackberries did not infringe NPT’s US patents because RMI’s servers were located in Canada. The same rules would apply to NZ companies.) The only comfort that being in NZ would provide would be that the US patent holder (if the law suit were successful) would have to seek enforcement of damages through the NZ court system.

    [And it is curious you mention the diary [sic] and ag sector as I’ve personally spoken with contract developers for companies in this industry who signed the industry petition.]

    I again refer you to the guideline submissions.

    Technology Interest Group said:

    “We are making this submission on behalf of an informal group of individuals and organisations who have an interest in building businesses based on technology. The group is made up of small, medium and large businesses that are New Zealand owned and operated, as well as individual entrepreneurs and commercialisation experts. Most of us use patents, and we all want the choice to use patents. Our group does not include patent attorneys but we have sought expert advice to ensure that our understanding of the issues is sound. Our members wish to be protected from those who have responded with hostility towards different opinions on this topic, so the identity of the members has been withheld.”

    “Clearly, the vast majority of inventors who will be affected are outside the information technology industry. Despite its far-reaching consequences, the policy justification of the new rules is focused on satisfying one segment of the information technology industry.”

    Thermal Chemistry said:

    “Thermal Chemistry is a specialist engineering consultancy focused in the area of Power Station Chemistry. Based in Hamilton we provide professional services to organizations globally. Our staff also publish regularly on power plant chemistry matters.”

    “Much of the expertise in our business is proprietary and we are currently undertaking a process to develop and commercialize our expertise as specialist instrumentation for use in power station environments. This will consist of hardware devices and corresponding computer programs that will execute on those devices. We have research and development work underway focused on a number of challenging problems faced by modern thermal and geothermal generation units. “

    “On our plain English reading of the proposed section 15(3A) we fear that our inventions, created in computer code but also relying on hardware components and instruments, will be excluded from patentability in New Zealand. We do not find anything in the proposed guidelines that provides us with any comfort as to how this section might be interpreted.”

    Air New Zealand said:

    “Intellectual Property plays an important part in Air New Zealand’s innovative approach to business. The Air New Zealand Board sees intellectual property as a competitive toll and is investing in ways to help Air New Zealand get the most value from intellectual property.”

    “This uncertainty in legislation will have a detrimental effect on our ability to license or sell some intellectual property rights to others for commercial use.”

    Airways Corporation of New Zealand said:

    “Airways is in favour of the patentability of inventions involving computer programs and was disappointed to see clause 15 (3A) included.”

    “Airways is an SOE (State Owned Enterprise) that has been mandated to develop and grow its own intellectual property and protect it. A considerable amount of the IP developed by Airways is patentable inventions in the form of computer programs in the field of air traffic management systems. … Typically our software runs on general purpose computers so the question of what does and does not qualify as ‘embedded software’ is critical to our ability to protect IP.”

    These quotes are examples of the concerns of those in New Zealand industries outside of the software development industry. I invite you to review all of the other submissions.

    [The report of the Select Committee was endorsed by all the parties at the end of 2011.]

    I am not sure which “parties” you are referring to. It was not any elected members of any of the political parties. The Bill sat dormant on the Order Paper throughout 2011 up to the election in November 2011, and then was restored to the Order Paper after the election. Throughout 2011 it was not supported or opposed in the form of a formal vote by any party. And as mentioned above, of the submissions that did express an opinion on the merits of the Bill in 2011 (in the form of submissions on the draft guidelines) four supported the select committee recommendation and 29 opposed it.

    [And I return to my core assertion that public policy for NZ, balancing the social costs to wider society v private benefits that supposedly pass into public domain, should be reliably, credibly and feasibly administered.]

    I fully agree with you on that sentiment. Where I differ from you is on what benefits should be taken into account. You referred to “Bessen’s empirical research showed that there was a shift in patent litigation post dot-com bust.” That can be considered on one side of the ledger. But what can be considered on the other side of the ledger is the March 2012 USPTO report: “Intellectual Property and the U.S. Economy: Industries in Focus” that can be downloaded from the link:

    http://www.uspto.gov/ip/officechiefecon/report_ip_and_the_us_economy.jsp

    Some of the findings of that report were:
    “The entire U.S. economy relies on some form of IP, because virtually every industry either produces or uses it.
    ” IP-intensive industries accounted for about $5.06 trillion in value added, or 34.8% of U.S. gross domestic product (GDP), in 2010. Merchandise exports of IP-intensive industries totaled $775 billion in 2010, accounting for 60.7% of total U.S. merchandise exports.
    ” IP-intensive industries directly accounted for 27.1 million American jobs, or 18.8% of all employment in the economy, in 2010.
    “A substantial share of IP-intensive employment in the U.S. was in the 60 trademark-intensive industries, with 22.6 million jobs in 2010. The 26 patent-intensive industries accounted for 3.9 million jobs in 2010, while the 13 copyright-intensive industries provided 5.1 million jobs.”

    While Prof Bessen studied shifts in US patent litigation, the USPTO investigated measurable effects of intellectual property on the US economy. The identifier in that study was IP intensive industries. And in Table 1 on page 8 of that report, the top four industries (measured as patent intensity) were the computer and peripheral equipment industry; the communications equipment industry; the semiconductor and other electronic components industry; and the other components and electronic products industry.

    [And since I’m very much in financing of IP, I believe a legal property system requires certainty of subject, which currently is not expessed well by software patents.]

    Having been in the business of drafting and interpreting patents for over 40 years I share your wish to have some certainty. Unfortunately, certainty is a luxury I have yet to find in this business. A common theme to each of the 29 submissions on the software guidelines that opposed the recommendations of the select committee is the uncertainty that they would create.

  6. Doug Calhoun says:

    drllau

    Before you point it out, there is a typo in line 3 of the first paragraph of the Air New Zealand submission quote. They see IP as a competitive “tool”, not a competitive “toll”.

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