Open Malaysia

"Software Patents in Malaysia?"

In ComputerWorld Malaysia, next to the article about Linux in schools in Philippines, was this interesting box. Im not sure whether it was an advertorial, but it seems like a reignition of the software patent debate.

5 Minute Reading:
"Software Patents in Malaysia?"
by Noriswadi Ismail

Challenge me if this statement is quite misleading: "Intellectual Property Rights (IPR) within the Information Communications & Technology (ICT) industry in Malaysia is largely segmented". To quantify, ideally, most of the IPR components that hit the national headlines are mostly on infringement. And of all the decided cases in our national courts - are purely surrounded by invalidation and infringement cases - so much so, the ICT industry is still hoping for more development and progress.

There are some initiatives by Multimedia Development Corporation (MDeC) to suggest a move towards software patents. It was sometime, in the first quarter, this year; I had attended a well-organized conference by MDeC. Officials form the Japan Patent Office and Malaysian Intellectual Property corporation (MyIPO) were invited to provide their views and stance on software patents. There were invited consultants who impressed the attendees with their overall insights to - from basics to the advanced level understanding. During the wrap up session, I had personally opined:-

i) That MDeC and MyIPO should gauge extensive feedbacks, through a public consultation paper, from Malaysia's ICT stakeholders on software patents;

ii) That the result of the consultation should be diffused and disseminated to the stakeholders; and

iii) That MDeC and MyIPO should consult a well-coordinated forum with the Attorney General' Chambers ("AG Chambers") to consider such practice notes, guidelines or amendments to the existing Malaysian Patents Act.

Though these three (3) items may sound such a Herculean task, however, from the ICT industry perspective, it's timely for Malaysia to have its own stance. Putting the legal debate on patentability of software aside, for the time being, the ICT industry is hoping for a quantum leap that could stimulate software innovation culture. Some players may argue that software patent stifle innovation. To a certain extend, it has its merits. Arguably, the global software patents landscape are diversified due to its territorial nature of IPR protection and enforcement. Some countries allowed software patents. Some countries allowed software patents with conditional guidelines and some countries are very much grey on this subject matter. On this case, where is Malaysia heading to?

Assuming: If software are deemed to be patentable, the next challenge that will be faced by Malaysia's ICT industry is the monopoly of other competitors and big players. Whilst there is no competition regulations and laws addressing such concerns, perhaps, MDeC, MyIPO and the AG Chambers should add this in their must-to-do list in the nearest future. To move forward, my urge to all the readers - policy makers, stakeholders and ICT industry players, what do you think about Software Patents from other angles - business, economic and others? Your views are highly sought in shaping our public policy engagement in Malaysia.

Email me your thoughts at: noriswadi@heitech.com.my

The writer is a British Chevening Scholar and Group General Counsel / Company Secretary of HeiTech Padu Berhad.

Although this call for comments appears to be neutral, there are some issues which cause concern regarding Noriswadi's position:

1. He only says that there are some countries who allow it, some who allow it with conditions and "some countries are very much grey on this subject matter." There is no mention that there are countries which have clearly rejected software patents, namely India, UK and the entire European Union.
2. He seems to be calling out for more proactive moves on MDeC and MyIPO to re-invigorate the local software scene and "hoping for a quantum leap that could stimulate software innovation culture". Maybe a policy move could achieve the effect, but encouraging software patents I believe is the wrong way to go about it.
3. He forgets to include are the most important stakeholders of this issue; the Malaysian public. We are unfortunately net importers of technology. We need the freedom to choose whatever technology available, be it proprietary to FOSS (Technology Neutrality). Software patents will hinder FOSS adoption due to scare tactics or legal suppression by patent holders. End users will have to bear the burden for artificial monopolies, legal and licensing costs.
4. He does not elaborate on what actual benefits software patents would bring to the local ICT industry. He just says "To a certain extend [sic], it has its merits". Perhaps the merits and demerits could be elaborated on to give a complete picture for Malaysia to decide?

Back in 2006, PIKOM held a seminar on this very issue, and I had the pleasure to listen to and summarise talks by Ng Wan Peng and Deepak Pillai. Wan Peng was from MDeC, and she concluded in her talk entitled "Policy considerations in the patentability of computer implemented business methods"

 

Here are some interesting points from her presentation.

The MDeC report [in 2005] also noted that in the Malaysian Software Development environment, we are still a net importer of technology. It asked these questions,

Will Software Patents help:

• increase Foreign Direct Interests?
• reduce the deficit in Technology balance of payments?
• reduce transactional and social costs?

For all three queries, the answer was a resounding 'No'. A strong legal framework is an important but relatively small criteria in selecting a country for investments. The other criteria comes from able workforce, stable government, language and cultural preferences and other major economic reasons. IP protection is important, but not as important as the rest.

In conclusion,

MDeC's position on Software Patents are:

• Retain status quo: Software Patents are possible on stringent criteria: if it shows innovation and novel ideas
• Business Methods are clearly not Patentable
• and a review of position in 3 years time ...

I guess 3 years on, the 2005 report is now due for a review, and that is probably why we are getting renewed interest in software patents.

Deepak's presentation  "Intellectual Property - Know your rights," was just as interesting;

He notes that Software patents are seen as an inhibitor of the production of  both FOSS and proprietary Software Development in Malaysia. Reason being is that it puts developers and users at risk of patent infringement suits. It also requries developers to conduct searches to be aware of existing patents before proceeding with development work. This is wasteful in both monetary, manpower and time resources. The USPTO system of granting software is open to abuse as registration is easily acquired and a challenge requires substantial financial capacity which not many start-ups have the deep pockets.

However Software Patents are not the cause of the problems facing the software industry now... its the ease in which the USTPO is awarding patents to the applicants. A regular mechanical patent requires detailed schematics and actual operational machines before it can be awarded to the applicant. However Software Patents just requires a 'concept' to be documented. No actual implementation in code is necessary! This provides huge leeway in terms of approval criteria and subsequently interpretation in enforcement. To me, it highlights the huge difference between Hardware (Traditional) Patents and Software Patents. One being undeniably useful, and the other redundant.

I had the opportunity to ask him: "Why do we need Software Patents to protect software? Does Copyright Law provide sufficient protection?"

Deepak immediately answered "Yes, current Copyright Law is sufficient in protecting Software Intellectual Property."

I do hope that En. Noriswadi's intentions are sincere in that he is looking genuine input from stakeholders. I do also hope that he is more sensitive to aspects of this debate from the FOSS perspective. More importantly he does his homework on the full benefits and disadvantages of software patents.

It is interesting to note that globally,  the software patent mess is starting to rear its ugly head yet again. In the EU, Charlie McCreevy is trying to legalise software patents with a US-EU patent treaty, and in India the Patent Office is working on a Draft Patent Manual to allow software patents.

Candlelight Vigil held to protest against
software patents on 23 Aug 2008 in Bangalore

... and it looks like Malaysia is also going to join the party.

yk. 

Happy 2nd. birthday, Open Malaysia blog!

May 17, 2008 is Open Malaysia blog's 2nd. birthday!
HAPPY BIRTHDAY!

The first post 2 years ago declared, "This is a blog
about openness, saying that the changing times call for innovation through open collaboration." Open innovation, ODF, open standards and open source were what we championed then and what we still champion today.

Malaysia had voted Approval of ODF as an ISO standard just before this blog started 2 years ago. OOXML came into the picture since then, but in the last one year, Malaysia cannot be considered to have officially accepted OOXML -- the Malaysian National Body committees  (TC4, then ISC G) voted Disapproval of OOXML, and the Malaysia final vote of Abstention decided by the Minister is at best non-committal to OOXML.

On the blog's 1st. birthday on May 17, 2007, there were 194 posts and 163 comments. In the one year after that, we added 111 posts but the number of comments tripled to 512 comments within the same one year! The worldwide dialog created by this blog was awesome.

In the 1st. year, we had 32,000 visits (by Sitemeter). In the 2nd. year, the month of March 2008 alone had 32,000 visits, with a total of 100,000 visits in the whole of this 2nd. year. The most popular post was definitely The Last Lap on the OOXML results which attracted thousands of visits every day.

Yes, the times they are a-changing. I leave it to you to recount the changes you have seen in "openness" in Malaysia and elsewhere over the last year -- do write your comments below.