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Software Patents: the Difference between Excluding Computer Programs as Such and Excluding Computer Programs as Such Peter Kerr May 23

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By guest blogger Doug Calhoun

The Patents Bill has had a tortuous ride through Parliament – to say the least. Introduced in 2008, it was reviewed by a select committee in 2009 and reported back in March 2010. In September 2012, the bill finally got its second reading that featured a heated debate over the exclusion from patent eligibility of “a computer program as such”.

Since then the committee stage (when the “as such” wording would be voted on) has been delayed.

On 9 May the government tabled Supplementary Order Paper 237.

The main change proposed in SOP 237 was to rewrite the September 2012 exclusion in a new Clause 10A. The new clause features 4 sub-clauses that seek to explain how the exclusion is to be interpreted – but the substantive exclusion is still “a computer program as such.”

So it came as a bit of a surprise to read Clare Curran’s description of the change as David conquering Goliath – a win for the 90%+ of New Zealand innovators that she claims to represent. It is a bit difficult to fathom how the exclusion of a computer program “as such” can be condemned so strongly in September and then be a triumph the following May.

But hey, this is politics. And Clare Curran has borrowed a page from the George W. Bush manual of political spin. She didn’t have a bomber jacket, a “Mission Accomplished” banner or an aircraft carrier. So she had to settle for a declaration of victory – never mind the inconvenient details – on her party’s “Red Alert” blog.

Ms Curran’s victory announcement included this slight revision of history:

“Three years ago, the Commerce Select Committee undertook a much needed review of New Zealand’s patent laws which hadn’t been looked at since 1953. A substantial review which considered and recommended modernisation to an important plank of our intellectual property regime ranging from inventions to medicines, traditional knowledge and indigenous plants and animals to software programs.”

The Patents Act 1953 has been under review for half of its life. In 1983 a government appointed committee (the Industrial Property Advisory Committee) began the process. Since then reviews have done by the Law Commission (1989/90), the Ministry of Commerce (1990-1994), and the Ministry of Economic Development (2000-2008). The Patents Bill, in its original form was introduced by a Labour led government in 2008. What happened before Clare Curran became aware of it was seemingly beyond her event horizon.

The policy development had been conducted in a largely non-partisan way through to September 2012, when computer software became a political football and the rest of the Patents Bill and its purpose became largely ignored. The injection of partisan politics into patent policy at this stage is hardly a recipe for success for New Zealand.

According to its explanatory note, the wording of SOP 237 is intended to be

“more consistent with English precedent.”

But one wonders how closely the authors of the change have looked at English precedent.

In the most recent (3 May 2013) UK appeal decision HTC Europe v Apple the English court of Appeal reversed a lower court decision and held an Apple patent claim to be valid. The invention related to the organisation of touch screen devices. The claim reads:

  • “(i) A method for handling touch events at a multi-touch device, comprising:
  • (ii) displaying one or more views;
  • (iii) executing one or more software elements, each software element being associated with a particular view;
  • (iv) associating a multi-touch flag or an exclusive touch flag with each view, said multi-touch flag indicating whether a particular view is allowed to receive multiple simultaneous touches and said exclusive touch flag indicating whether a particular view allows other views to receive touch events while the particular view is receiving a touch event;
  • (v) receiving one or more touches at the one or more views; and
  • (vi) selectively sending one or more touch events, each touch event describing a received touch, to one or more of the software elements associated with one or more views at which a touch was received based on the values of the multi-touch and exclusive touch flags.”

The lower court decision was that this claimed an (ineligible) computer program as such – the appeal court held it did not. The invention claimed was patent eligible.

Lord Justice Lewison, in paragraphs 140 to 144, had a bit of a moan:

“This appeal requires us, once again, to venture into the minefield of the exclusion from patentability of computer programs ‘as such’”

He then went on to explain that the two simple words “as such” found in the European Patent Convention (which governs both UK domestic law and the law applied in the European Patent Office) still have no clear meaning after 35 years of trying. Instead of arguing about what the legislation means, the arguments now are about what the gloss means. And still no one can agree.

SOP 237 sets out to put into law in New Zealand, a New Zealand “gloss” on the gloss that they have been disagreeing about in the English courts and the European Patent Office since 1978.

Clare Curran paints

“the bloated patent attorney sector”

as one of the villains on the side of Goliath in this saga. (Gratuitous insults seem to be as common to political blogs as a bit of biffo is to rugby pitches.)

What her “triumph” has unwittingly done is to open up a fertile new field for the bloated patent attorney sector to venture into over the next few years. And among the most likely innovations will be in defining software-implemented inventions.

Clare Curran might also want to have a look in her own (Dunedin) back yard. A successful University of Otago spinoff company there is Pacific Edge. That company boasts on its website that it underpins its products with a strong portfolio of patents.

One of its New Zealand patents, NZ 544432, claims a method for determining the prognosis of colorectal cancer in a patient using analysis software.

Under the new clause 10A and under clause 15 of the Patents Bill such claims might no longer be eligible for patents because they might claim a computer program per se or else because they might claim a method of diagnosis, or both.

The most valuable asset that Pacific Edge has is its intellectual property. The Patents Bill casts doubt on the patent eligibility of innovative technologies that Pacific Edge is seeking to commercialise.

Is this really going to promote investment in innovation?


Lightning Lab startups ask – ‘where’s the money’? Peter Kerr May 21

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Lightning Lab 2013 saw nine startups pitch their digital products to would-be investors last week, seeking expansion capital for ideas that 12 weeks before mostly existed on paper.

The Wellington Demo Day saw highly polished presentations, with clear development plans and just as clear ‘here’s how we and our investors are going to make money’ to about 300 people at Te Papa’s Soundings Theatre. About half the audience were financiers.

Any investment secured goes to the next stage of development and expansion into global markets.

My initial underlying thought was jealousy.

Why? Because the participants have obviously learned so much.

Tui Te Hau, CEO of Wellington startup incubator Creative HQ up summed this rationale better than I can.

“Lightning Lab is turning out 30 entrepreneurs with a harder edge and keener and smarter drive to succeed than many. How far they go is up to them, but these companies are 12 weeks old and they already have more scars than most get in several years.”

These nine companies were whittled from 87 applications to LL late last year, and each received $6000 per head from a set of founding investors. By being part of a three month intensive acceleration programme, their digital concepts have been validated, built and established with early customers.

The startups have been mentored by local and international advisers, faced hard deadlines in growth targets and a structured model for accelerating early stage business growth based on international best practice.

When Te Hau talks about scars, she’s not exaggerating – but obtaining them so quickly and with the ability to ask advice such as “what should we do now” in such a concentrated manner – is something so valuable it really can’t be priced.

What is patently clear is that the 30 participants, and their wider networks, have had such an injection of entrepreneurial spirit and possibilities that multiplier spinoffs and benefits can only result for Wellington and New Zealand.

Put another way; this programme, with its hand-holding, arse-kicking and question-asking intensiveness will create a virtuous circle of increasing wealth.

And sure, like all of us, these startups have, and will make mistakes.

But, they know what needs to be done to get back on track, or alternatively how to fail-fast (and then get on with another project).

Because the Demo Day was asking for money, what can be reported publicly is limited.

Suffice to say that (and you’d have to imagine that the mentoring has been also strong in this area) the investment dollars being asked for by the startups seemed reasonable and appropriate.

Many of the companies had potential exponential growth rates, but realism ruled.

It is now up to the individual companies themselves to reveal if or what investment(s) have been made in them – and as this becomes known Lightning Lab will have its own raison d’etre validated.

For the record, those presenting were:

LearnKo – delivers online learning programs to English language organisations in Asia, harnessing Australasian tutors, training them and providing them with content to deliver through an online classroom

Publons – platform for crowd-sourced peer-review of academic articles, where academics build a reputation for their contributions. An alternative to the extremely slow, expensive and closed status quo of the past 300 years of academic publishing

Adeez – specialist mobile marketing platform, enabling brands and their agencies to increase their ROI on mobile marketing

Expander – tracking and analytics platform that protects brands by providing them with powerful tools to combat counterfeit, while connecting manufacturers and consumers

teamisto – turn a typical business sponsorship donation to an amateur sports club or team into an effective advertising channel with measurable results

Questo – works with organisations by providing a platform to create activities with incentives and rewards to engage their visitors. A mobile app and analytics engine provides the ability to track, measure and evaluate their visitors’ behaviour

promoki – social media platform that gamifies photo and video contests. Help brands co-create advertising campaigns with their audience and distribute crowd-filled media across multiple social networks

Kidsgomobile – software device to help parents teach their children to become responsible users of their first smartphone. Tool that notifies parents if their child engages in potentially risky phone behaviour and helps them resolve these issues

WIP – platform that enables professional video makers to share their work-in-progress videos with their team and clients to gather precise and meaningful feedback

Without doubt, some of these startups will go on to become much larger businesses. Without doubt too, most of them would not have got to this ‘go’ position without Lightning Lab.

The learning has been immense, and a thumbs up to those investors and sponsors who put their hands in their pockets from the get-go to kick the whole thing off.

Applications for the next Lightning Lab 2014 will open in September this year.


One way to crack a coder shortage Peter Kerr May 17

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Ever tried to get hold of a professional who can write computer code?

Such is the shortage, that a recent would-be returning ex-pat Kiwi, who knew how to program, put out a general inquiry through WellRailed if anyone in Wellington or wider NZ would be interested in meeting once he got here.

Apparently he immediately had 26 replies, and half a dozen offers of employment, sight unseen, with no interview whatsoever.

So; it would seem there’s a definite shortage of people who understand and can manipulate the workings of computers, mobile devices and apps.

It is this developer (another name for coder and programmer) shortage that’s driven Enspiral (a digital collective cum incubator cum clever people autonomously working together) to offer a type of ‘coding for dummies’ course, specifically around Ruby programming. (sticK’s had a couple of stories on Enspiral’s different type of business model before; see here and here.)

It is called Code Yoga, and its intent is to expose people who have never coded before to what it is about, and, reasonably quickly, help them get a level where could be employed at a junior coding level. From there – well, the world’s your oyster if that’s your bent.

This is very much an Enspiral kinda thing to do.

The collective’s co-creator, Joshua Vial, and the rest of its current eco-system of 105 people based mainly in Wellington but linked to Hong Kong, Berlin, New York and Phnom Penh, share a philosophy of helping people to help themselves.

It is part of the social enterprise model that drives most of the 12 companies that reside (the wrong word but it will have to do) under its umbrella.

Enspiral itself is programmer short-handed at times, so at the very least it is feeding its own needs.

But, in identifying a patently obvious shortage, and doing something about it in a ‘just do it, just learn it’ manner, Enspiral’s demonstrating an attitude that’s bigger than itself.

According to Vial, many of the dozen or so people who have done the course since it kicked off in recently (advertised through the interesting ‘teaching/learning’ platform Chalkle), have graduated to real, paying jobs in IT.

These include writers, teachers, other types of professionals, as well as students.

As a crash course compared to university or polytech based one to three year courses, it is obviously quite different.

However, as a way of introducing newbies to the hidden world of code, and whether it is a gig they’d like to have a go at for a while, these Enspiral guys deserve some credit.

Heck, some of them might even enjoy it as a challenge!

P.S. Enspiral’s kicking off a dev boot camp in the next month or two too – keep an eye out if you’d like to be part of t


The Power of Un-Location gets an airing Peter Kerr Apr 16

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Toby Ruckert of Unified Inbox had an interesting blog recently – demonstrating what he has called the Power of Un-Location.

(sticK had a blog on an earlier version of Unified Inbox here.)

For a brief period while in Shanghai, he (relatively unintentionally) went back in time 25 years or so, where he didn’t have a mobile phone or internet connection. In this he found quite a freedom.

Toby’s expressed many of the disconcerting pressures and issues that some of us have about always being connected, always feeling like you’re having to check in to see who has been checking in. I see some of the same in my own children and their relationship with Facebook, (I’m probably one of its worst users).

It is not difficult to see why some researchers believe that modern children are having their brains rewired differently to how older generations did – a result of all this immediate connectivity and ability to find an answer to any question straight away.

I thoroughly recommend a read of Toby’s blog. He articulates some excellent reasons for disconnecting for a little bit at least – not the least of which can be summarised as ‘sanity’.

There’s always a danger in considering the past to have been slightly more rosy-coloured than today, but he raises some good points in his discussion.

His blog also points to other examples of people reverting, at least temporarily, to a non-connected lifestyle.

I’m sure that in the not too distant future, doctors and others will thoroughly recommend, if not almost force, all of us to have a break from always being on. In the meantime, thanks Toby for highlighting the Power of Un-Location.


Lightning Labs shows off its first flowers of startup blooming Peter Kerr Apr 10

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Lightning Labs, a lean startup hub of selected neophyte companies located for three months on Wellington’s The Terrace, gave a ‘where we’re at, what we’ve learned’ quickfire talks recently.

The fullhouse (dozens on the waiting list), heard how the nine IT-oriented businesses are going, how they’ve changed and pivoted (or spivoted as Questo described their 360° return to where they began) and how they’re achieving product-market fit.

All are using the lean startup methodology and being heavily mentored in the expectation that many will attract new and additional investment at a formal pitch session Demo Day at Te Papa on May 15.

The nine startups, whittled down from an original 87 applications, have received up to $18,000 for the three month internship cum building platform. LL’s organisers, Dave Moskovitz, Creative HQ and many others describe it as being a means to build a strong entrepreneurial ecosystem across New Zealand, and have modified America’s TechStars model for Kiwi sensibilities.

Lighntning Lab is sponsored by CreativeHQ, MBIE, ninetwenty recruitment, The Wellington Company, Weta Digital, FX Netowrks, TradeMe and CityLink.

It is all part of, in sticK’s opinion, a maturing and reality check on the difficult feat of turning an idea into a product or service that someone will buy. That, or creating a fast-failure so an entrepreneur can get on with another project that does have market potential.

The three month intensive is divided into thirds (with participants currently halfway through):

· First month –validation & mentor bombardment (asking questions, testing hypotheses)
· Second month – build a structure
· Third month – prepare for investment….and beyond

One interesting feature, is a weekly group evaluation of everyone’s progress and ranking (which varies). This ever-changing ranking graphically shows how well teams are considered to be going.

For the record, the presentations and brief explanation of the startups are: (The companies and original market intent can be found here.

A point to note is the change in description of what the startups consider to be their market, and/or problem they’re solving).

Questo! – platform to connect parents and their children and share photos (in particular)

KidsGoMobile – a means to make children’s smartphone use safer by enabling parents to have an overview of who they’re connecting

withPromoki – a collaborative media project to use crowdsourcing to make and tell stories (particularly around brands)

Teamisto – social media platform for grass root sports teams, allowing them to interact with and provide value to local businesses that may wish to be sponsors

Expander – tracking and analytics platform to protect brands, first aimed at NZ food and beverage productsMyBuy – mobile marketing platform particularly aimed at SME’s

Publons – building a way for academics to publish articles without having to use a journal (publication)

WIP – cloud-based collaboration tool for film-making and editing

LearnCOACH – platform to allow one-on-one, conversational english tuition to non-english students

As programme director Dan Khan says, “the lean startup methodology is a set of very commonsense techniques.”

“What is also really important is the importance of a vision – defined in a way that allows a company, when pivoting, to remain within that vision,” he says.

To have such a vision, a company needs a good idea of what problem it is trying to solve, and that there’s a big enough pain point to provide a product that customers will love.

Roll on (and even role on) May 15 – the proof of the (investment) pudding for Lightning Labs first cohort of graduates!


Little school thinks bearly big Peter Kerr Mar 19

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“And the prize for the best use of social media and punching well above its weight goes to,”….drum roll….”Koputoroa Primary School”.

This 170 pupil country school, seven kilometres north of Levin on the Kapiti Coast deserves heaps of praise, alongside its key organiser Suzie Valentine, for a fundraising effort that literally wins the hearts and minds and wallets of people all over New Zealand.

How?

By organising a ‘send your Teddy Bear on holiday’ event, where (obviously much-loved) bears are sent to the school and photographed enjoying a holiday.

Promoted through social media such as Facebook, each bear has its own special passport. This year’s theme is to enjoy classic and vintage cars (and naturally have their photo taken in them), as several of the bears have been around for more than half a century.

As both a way of connecting with a wider audience, and demonstrating that distance is no longer an inhibitor in a highly connected world, the novelty and fund-raising concept is truly innovative.

Over 100 Teddy Bears are going on this year’s holiday, and the approximately $3000 raised will go to IT equipment for students.

A clever, innovative, first-mover idea that ticks so many of the right boxes….surely there’s a Hollywood movie angle there!


Getting to grips with multicore’s hugely disruptive technology – an opportunity for NZ Inc Peter Kerr Feb 28

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There was some serious brainpower assembled at the recent Multicore World 2013 conference in Wellington.

Some of the subject matter was way-beyond the once over lightly understanding that I have of computers and computing. But the clear message was that there’s currently a big gap between what multicore computers (many cores on one chip) are capable of, and the programs to run them.

As an analogy, it is as if a car engine has eight cylinders, but there’s only fuel getting through to one or two of them – vastly decreasing its possible performance.

Put another way, multicore hardware is way, way ahead of multicore software. (When you consider that 64+ cores on a chip are now being manufactured, it is obvious, as has often been stated, that hardware capability is no longer an issue). How this clear gap is resolved is very much a problem in search of an answer.

It would’ve been good to see a heavier concentration of government and corporate IT heavyweights at the two-day conference held at the Wellington Town Hall.

The line-up of speakers would grace any northern hemisphere conference (and no doubt pull in hundreds of attendees), looking over the horizon at where the actual bits and bytes of computing is heading.

In other words, as opposed to the frothy apps and gee-whiz retail end of things, this conference was about where all the hard work of computers, memory, transactions and data crunching takes place.

One of the underlying themes of the conference put together by Oamaru-based Nicolas Erdody (Open Parallel) is that NZ Inc has an opportunity as the world grapples with how to utilise the huge amount of power available, but not yet being accessed.

The (parallel) programming required to take advantage of multicore, where the instructions to and from each core has to inform and be informed by every other core, is not easy.

As Poul-Henning Kamp, a Danish software writer and inventor of ‘Varnish’ commented; “parallelism is hard…..really, really hard.”

And one thing that hasn’t been decided is what computer language is best suited for writing parallel programming is still unclear – and indeed numbers of languages could evolve.

New Zealand has the opportunity to be a niche operator and software supplier in this emerging world – providing answers where others find it too difficult.

Ex-patriot Kiwi Dr Ian Foster (originally from Wellington, and these days among other roles the Professor of Computer Science at the University of Chicago) helped frame some of the already apparent and emerging possibilities capable through multicore in his keynote address.

(His, and the other presenters talks can be found here).

He described the exponentialism that multicores potentially provide as offering new paradigms that “can bring about huge transformations”.

Where he sees the grunt of multicore having near-future effects are:

-          Digital visual effects

-          Digital fabrication (additive manufacturing)

-          Industrial internet (heavy industrial internet)

-          Data analytics (big data)

Foster says multicore is a hugely disruptive technology – New Zealand has an opportunity to ride its wave, or (especially if the country doesn’t build a second fibre optic cable linking us to the rest of the world) be left behind.

Disclaimer:

I helped write some of the publicity and press releases around Multicore World 2013. The thoughts above are mine alone however.

 

 


Wellington Startup Weekend well pitched Peter Kerr Feb 26

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According to John Holt, the brainchild behind the San Francisco located Kiwi Landing Pad, the final pitch presentations at the Wellington Startup Weekend were better than 75% of those he’s seen in the USA.

Given that those State-side entrepreneurs are pitching for real money for ideas they’ve been working on for months, the former director of Sonar 6 reckons the fledgling companies in Wellington did a fantastic job of getting their ideas across.

The WSW attendees only had 54 hours to prepare their pitches, from an absolute standing start.

Unfortunately, I missed the first and winning startup presentation by WagonShare, a web-oriented means for mobile home owners to make a bit of money by renting out their vehicle. In New Zealand, as in the USA, these campervans and caravans are usually sitting around unused – but would be perfect for rental.

Apparently WagonShare were the unanimous winners – evident in that the judges didn’t need to spend too much time deciding their favourite new business.

The other 11 pitches showed varying degrees of market validation or ways of assessing whether there is a market for their perceived product or service. A couple of the teams pivoted their business on the basis of such market assessment during the two and a half days of intense development – something that could and should happen during the creation of any new venture.

The pitches that took my fancy were:

mySmartGrid

  • App/web-based way and tool for consumers to make better informed electricity use decisions
  • A bit of gamification, a bit of compare yourself with other individuals and interest groups
  • Apparently, PowerShop and other electricity retailers expressed interest in being part of such an offering

eMammogram

  • A means/way to standardise the images from mammograms taken across years to see change/difference in breast tissue
  • Could sit alongside Matakina Technology (which converts any digital breast mammogram into quantitative numbers in which tissue properties are characterised and differentiated)

Arrangr

  • Indian-subcontinent oriented web-based matchmaking service based on Facebook’s friend recommendations

STVA (SmartTVart)

  • Marketplace for digital art images
  • A way to protect and make money for artists whose work is displayed on a screen

As a couple of WSW mentors both mentioned, the idea of the event isn’t necessarily to come up with a new idea or company that drives through to the market – though that’s not considered bad.

More, it is to inspire, educate and provide a template for entrepreneurs and would-be startups to have a go.

One thing Startup Weekends do really well is demonstrate, vividly, the value of a team and individuals’ skills within that environment.

As Melissa Clark-Reynolds said recently in a sticK blog, trying to do everything yourself in a fledgling company poised for growth just slows everything down and is easily sub-optimal.

In other words, teams work.

And, on a final note, a piece of WSW irony.

Even before the WSW started, the organisers felt that they were a bit light on the number of participants expected to turn up with developer skills (people who can computer code).

This was compounded (for the other teams at least), when – during the phase that the initial 12 winners have teams formed around them – many developers opted to join the 3Dmakersworld.com team.

You probably can’t call it the law of unintended consequences, but it is something similar!


Australian Gene Patent Held Valid: Patent is for Isolated Nucleic Acid, not for Information Per Se Peter Kerr Feb 21

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By guest blogger Doug Calhoun

In a decision: delivered on 15 February 2013, nearly a year after the oral hearing, Federal Court of Australia Justice John Nicholas held that the Myriad Genetics patent for “An isolated nucleic acid coding for a mutant or polymorphic BRCA1 polypeptide … ” was an invention under Australian patent law.

The case was solely about whether or not the isolated nucleic acids claimed were “manners of manufacture” as required under the Australian Patents Act 1990. It was not about policy issues, such as access to medicines, or what the law ought to be in future. I discussed these issues in an earlier post:

The governing case on the interpretation of the words ”manner of manufacture” in Australia (and in New Zealand) is the 1959 decision of the High Court (Australia’s highest appeal court) in the case of National Research and Development Corporation v Commissioner of Patents (NRDC). NRDC was about a patent application that claimed a process for selectively eradicating weeds using a herbicide of known chemical composition.

In reaching its decision that the process claims were indeed patentable, the High Court took an innovative approach.

The words “manner of manufacture” originated in the 1623 English Statute of Monopolies.

The High Court observed that the intention of patent legislation is to protect inventions – and what would constitute an invention in 1959 was well beyond the imagination of the English Parliament of the 17th century. In order to interpret the words in a contemporary context they should not be given a literal meaning – rather they should be interpreted to ask the question: “is this an artificially created state of affairs in an economic field?”

Justice Nicholas reviewed the NRDC decision and then considered how it should be applied in this case:

86 There are three important points that emerge from these passages. First, the Court identified the question that must be addressed for the purpose of determining whether or not subject matter is patentable, viz. “[i]s this a proper subject of letters patent according to the principles which have been developed for the application of s. 6 of the Statute of Monopolies?” Secondly, this question involves a conceptual inquiry as opposed to a consideration of the etymology of the expression “manner of manufacture”. Thirdly, the concept of manner of manufacture has a “broad sweep” intended to encourage developments that are by their nature often unpredictable.

 

88 It is apparent from this passage that a product that consists of an artificially created state of affairs which has economic significance will constitute a “manner of manufacture”.

103 There are two further points to be made concerning NRDC. First, it is important to note that NRDC does not require the Court to ask whether a composition of matter is a “product of nature” for the purpose of deciding whether or not it constitutes patentable subject matter. NRDC recognises that it may be unhelpful to approach the problem in this way. I think this is especially so in the field of biotechnology in which micro-organisms play a critical role in the development, manufacture and use of diagnostic and therapeutic products and techniques. And second, NRDC does not require the Court to ask whether a micro-organism is “markedly different” to something that already exists in nature for the purpose of deciding whether it constitutes patentable subject matter (cf. Chakrabarty at 310).


Justice Nicholas observed what the claims did not cover, in spite of the submissions of Cancer Voices to the contrary:

76 First, the disputed claims are not to genetic information per se. They claim tangible materials. Much emphasis was placed by the applicants [Cancer voices] upon the informational character of DNA as a storehouse of genetic information. But the disputed claims are not to information as such. They could never be infringed by someone who merely reproduced a DNA sequence in written or digitised form.

77 Secondly, because each of the claims is to an isolated chemical composition, naturally occurring DNA and RNA as they exist in cells are not within the scope of any of the disputed claims and could never, at least not until they had been isolated, result in the infringement of any such claim.

The substance of the decision is set out in four paragraphs:

106 Accordingly, the issue in this case turns upon whether an isolated nucleic acid, which may be assumed to have precisely the same chemical composition and structure as that found in the cells of some human beings, constitutes an artificial state of affairs in the sense those words should be understood in the present context. There are three considerations which lead me to think that it does.

107 First, in explaining the concept of manner of manufacture as one involving the creation of an artificial state of affairs, it is apparent that the High Court in NRDC was deliberate in its use of very expansive language. Not only did the High Court emphasise the “broad sweep” of the concept involved, it also made clear that metaphorical analysis may not be helpful in determining whether or not something constitutes patentable subject matter.

108 Secondly, in the absence of human intervention, naturally occurring nucleic acid does not exist outside the cell, and “isolated” nucleic acid does not exist inside the cell. Isolated nucleic acid is the product of human intervention involving the extraction and purification of the nucleic acid found in the cell. Extraction of nucleic acid requires human intervention that necessarily results in the rupture of the cell membrane and the physical destruction of the cell itself. And purification of the extracted nucleic acid requires human intervention that results in the removal of other materials which were also originally present in the cell. It is only after both these steps are performed that the extracted and purified product may be properly described as “isolated” in the sense that word is used in the disputed claims.

109 Thirdly, as Dann’s Patent demonstrates, the isolation of a particular microorganism may require immense research and intellectual effort. In that case, it was only as a result of an intensive research effort that the isolated micro-organism in question could be made available for use in the manufacture of the new antibiotic.It was fortuitous for the patentee that it was its employees who were first to isolate the new micro-organism and first to deploy it in the manufacture of the new drug. That will not always be so. It would lead to very odd results if a person whose skill and effort culminated in the isolation of a micro-organism (a fortiori, an isolated DNA sequence) could not be independently rewarded by the grant of a patent because the isolated micro-organism, no matter how practically useful or economically significant, was held to be inherently non-patentable. In my view it would be a mistake, and inconsistent with the purposes of the Act, not to give full effect in such situations to the broad language used by the High Court in NRDC.


Justice Nicholas, after completing the reasons for his decision also referred to the various reviews conducted in Australia and the enquiry and bill not passed in the Australian Senate. He pointed out that none of these had any bearing on his decision – he had to interpret patent law as it now existed.

The applicants who sought to revoke the Myriad Australian patent have 21 days to appeal the decision.

Justice Nicholas also commented upon the US cases considering the validity of the US patents equivalent to the one he was considering:

134 On 30 November 2012, the US Supreme Court announced that it would hear an appeal in the Myriad case. The US law in relation to the patentability is therefore not likely to be settled until the Supreme Court reaches it own decision on the issue.

135 In any event, it seems to me that the Myriad decision does not provide any direct assistance to either side in the present case. I say this for two reasons. First, the law in Australia is different. I must apply the law as explained in NRDC. It must also be recognised, especially as the Myriad case heads to the US Supreme Court, that the constitutional setting in which patent legislation operates in the US is quite different to that in which patent legislation operates in this country: Grain Pool of Western Australia v Commonwealth of Australia (2000) 202 CLR 479 at paras [28]-[32]. Secondly, the evidence in the Myriad case was not the same as the evidence in the present case. And at least in relation to the matter of covalent bonds, I have taken a different view of the facts to that taken by Judge Lourie.

For more on the first and second US Federal Court of Appeal Cases see my earlier posts here and here:

The date set for the oral hearing before the US Supreme Court is 15 April 2013. A decision can be expected by the end of June 2013 when the court’s 2013 term ends.

And in an interesting twist, if the US Supreme Court says “no” to gene patents, will the Australian negotiators of the Trans Pacific Partnership agreement insist on a change to the IP chapter so that isolated nucleic acids are eligible for patents in the US?


Personalised time/place knowledge goal of ThunderMaps Peter Kerr Nov 16

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ThunderMaps co-founders (L-R), Lachlan Priest, Mickael Foucaux, Clint Van Marrewijk, Shannon Smith and Lewis Gyson; aiming to make geospatial information usable in real time

Location-based intelligence is one of the up-and-coming applications of all things mobile.

Wellington-based startup ThunderMaps reckons it has a solution to a problem – individuals and organisations having geo-knowledge that is valuable to others, but having no practical way of sharing their information.

ThunderMaps co-founder Clint Van Marrewijk says the five person team’s goal, is to reduce the barriers to the adoption and use of spatial information by the public.

“There is so much valuable data going to waste. We take data available from separate organisations, and data inputted from the public, and give users, usually smart-phone owners, the ability to filter that for themselves,” he says.

“Users can subscribe to receive alerts when things happen in places they care about. People can also report events or hazards that they witness, while they are on the move.”

Van Marrewijk says a good example of the problem that ThunderMaps is looking to solve is an individual knowing the location of missing manhole covers, graffiti, environmental breaches, or road hazards for example.

At the same time government and local government agencies also possess highly valuable geo-data from an individual’s perspective, but it isn’t released in a way that’s usable for normal people.

“ThunderMaps provides a platform where any organisation can distribute data, and control the types of data that is received from and shared by the public,” he says.

ThunderMaps has tapped into the NZTA’s Traffic Road Event Information System, so that road users can receive the same alerts that government officials receive when roads are icy, there’s a crash, hazard or major blockage of traffic. Anyone can sign up for free now, to receive alerts in their location of interest.

“Isn’t it wrong that this data isn’t easy to access? It’s almost criminal that this information isn’t accessible; the government simply must continue to release this data so that we can get it into the hands of people that can get the most use out of it – the public”

“We will enable efficient decision making, reduced costs, faster response times and increased community engagement in the role of government.”

The spatial dividend gap, defined as a failure to reap the benefits of spatial information, has been estimated as having a cost of $480 million a year in New Zealand (2009 ACIL Tasman study).

Van Marrewijk says ThunderMaps will help bridge this gap by providing an easy to use platform for both individual users, sharing their geo-data with others, and an easy way for government agencies that collect information, to distribute it to the public.

With development being carried out since June, ThunderMaps aims to eliminate the need for a business, organisation or cause to build an expensive individual app to report the location of incidents, in their particular field of interest.

ThunderMaps have been taking their platform to first mover organisations, and they are beta testing it with them now.

Among those showing positive interest are neighbourhood watch groups, graffiti response trusts and government agencies concerned with hazard reduction and awareness.

Watch this space – literally!

P.S.
Since yarning to Van Marriwijk, they’ve scored a couple of forward-moving successes:

• It has recently been accepted in the ‘Dragon’s den style’ presentation round of the government’s Open Door to Innovation – a bureaucrat attempt to harness market innovation http://ict.govt.nz/programme/open-door-innovation
• It has trials pending with two Wellington schools for truancy reporting


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