it.gen.nz

The Princeton online dictionary define disingenuous as: “not straightforward or candid; giving a false appearance of frankness”. I can’t think of a better way to characterize some of the responses to the Commerce Select Committee’s sensible decision not to allow software patents in New Zealand.

I’m delighted with the decision. I’ve written before about the iniquities of software patents. Here are five reasons not to allow them:

1. Patents are private monopolies permitted because they are supposed to encourage innovation. Yet there is no shortage of innovation in software in countries that don’t allow software patents.
2. There is serious harm in software patents because their existence threatens software innovators who can’t tell if some idea is patented and have no way to evaluate a threat from someone who claims a patent over their work.
3. Allowing software patents lead to unintended bad consequences such as the existence of patent trolls – companies which appear to exist just to threaten developers with patent suits.
4. Patents cause a large deadweight cost in legal fees. That’s money which simply disappears from the software economy to the enrichment of patent lawyers.
5. Software patents can’t be awarded fairly. Patents offices and courts seem incapable of making sane decisions about what is and is not an original “invention” in software.

There has been a chorus of approval of the Committee’s decision. But there have also been some people arguing against. Two come to mind:
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Apparently not. Let me explain.

Two years ago I went as part of the New Zealand delegation to a meeting in Geneva called to determine the fate of a proposed new ISO/IEC document format standard, called colloquially OOXML or Office Open XML. Despite its name this standard had nothing to do with the OpenOffice word processing and spreadsheet program – which, in fact, uses a well established ISO standard format called ODF. Rather, OOXML was a an entirely different format invented by Microsoft for use by its Office 2007 suite.  Microsoft was very keen that OOXML be made an ISO standard, taking a full page ad in the Dominion Post claiming all kinds of benefits, including, mystifyingly, “provid[ing] choice about which software we use to exchange to documents” and “fostering innovation”.

The OOXML specification weighed in at 6,500 pages. At the time of the meeting in February 2008, national standards bodies had already voted not to standardize it. Their objections covered a huge range of technical problems with the standard, concerns that the standard might be encumbered with patent claims, and a view among some that setting multiple standards for the same thing would hinder the ability of people and businesses to swap documents between different word processors. The meeting I went to was intended to deal with the technical concerns.

By the time we arrived at the meeting 1,500 pages of changes had been proposed to the draft standard. The meeting, which had about 50 countries with an average of three attendees each, then tried to work its way through these changes to see if they could ‘fix’ the technical problems in the draft standard. Needless to say, it didn’t get a long way through and ended up voted to accept a lot of the proposed changes en masse.
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