Software Now Un-Patentable In New Zealand

A few weeks ago New Zealand Software decided to grant software patents. But now "Despite what appears to be a big-budget lobbying effort by the pro-patent fraternity, Hon Simon Power announced today that he wouldn't be modifying the proposed Patents Bill hence software will be un-patentable once the Bill passes into law. This is significant. As we've previously pointed out software patents aren't black and white, and there are certainly pros and cons. However on balance, we believe they represent a far greater risk to smaller NZ-based software providers than opportunity, and there are many cases where they have significantly stifled innovation. We believe it's near impossible for software to be developed without breaching some of the hundreds of thousands of software patents awarded around the world, hence many software companies in New Zealand, creating outstanding and innovative software, live a constant risk that their entire business will be wound up overnight due to litigious action by a patent holder. This has led to many a 'patent troll' company, primarily in the US. These are non-software companies who exist only to buy up old patents with the sole intention of suing innovative software companies for apparent breach of these patents. The effects of this have been chilling."

Comments

Huzzah!

[spammeister]

Hopefully this marks the beginning of more like-mindedness thinking in other countries.

There should be some ramifications to the ACTA kerfuffle, which is always welcome IMO.

Re:Huzzah!

[Bigjeff5]

Meanwhile in the US, the way has been paved for business method patents. Yay progress!

While I definitely think there are legitimate software patents, the decision to have none at all is probably better than the current insanity in the US.

Patents should be for truly innovative things, and no, adding "on a computer" to something that has already been invented is not innovative. Apparently our patent clerks cannot tell the difference when it comes to software.

Re:Huzzah!

[cashdot]

Apparently our patent clerks cannot tell the difference when it comes to software

I was working as such a patent clerk (with focus on software) in Europe.

While it is easy to accept every software patent application (as in US) or reject all of them (as apparently now in New Zealand), it is very hard to find objective criteria to separate obvious things from truly innovative stuff.

The basic problem is, that in Software, there are usually very little unforeseen obstacles to overcome, when a concept is turned into actual code.

Lets say, state of the art is, that software A can do X, and software B can do Y.

Now somebody invents a software C that can do both, X and Y. Is this innovative? Usually not.

If we apply this example to the physical world, the situation is entirely different. A submarine can dive, and an aircraft can fly. Inventing a "machine" that can do both, would require a lot of innovation.

Now, a patentable idea has to be technically feasible. In the case of software, there is not much justification required, as every expert in the field knows, that it is in principle possible to combine X and Y. On the other hand, in the physical world, it requires much more than just an "idea" of a flying submarine to have a patentable innovation.

Therefore, it is very easy to apply for a patent for a software, that is unknown in the state of the art, while technically and economically feasible. In the physical world, this is much harder to achieve.

The problem is not, that the patent offices only have incompetent examiners. Rather, the definition of "patentable innovation" is not suitable for software.

Re:Huzzah!

[innocent_white_lamb]

If you can take an idea for a piece of software to any software engineer and say "Here, program this for me" and they can program it for you, it isn't an innovative enough idea for a patent. If you take it to an engineer and they say "How the hell am I supposed to do that?" then you have something special. After you get the patent, that same engineer should be able to read your patent and say "Oh, that makes sense" and write the program.
 
Your solution doesn't cover the situation where someone thinks of doing something that has never been thought of before.
 
I have a fire burning. If I poke a stick into the campfire, I have a torch that I can use to transfer the fire to a new location!
 
If nobody thought of poking a stick into a fire before, is that an innovation? Particularly if the question wasn't phrased as "move the fire from point A to point B" because nobody ever considered moving it before?
 
I don't know.. that might be a bad example. What I'm trying to express is a situation where someone solves a problem that nobody actually realized was a problem before the solution is presented.

Re:Huzzah!

[Xtifr]

Bilski as a whole greatly improved matters in the US. It's true that the SC didn't go quite as far as the lower court, but the lower court decision wasn't binding on other districts, while the SC decision is. Even East Texas. Anyway, the net result was still a major improvement. And the test (machine-or-transformation) wasn't rejected; it was simply stated to be not-necessarily-sufficient by itself. But the bar for any candidate patent that fails the machine-or-transformation test is much, much higher than it was. The State Street test is dead. The Bilski test survived, although it was mildly wounded.

Pre-Bilski business/software patents are still going to come under a lot more scrutiny than they did before.

Or to put it another way, the answer to your last question is: since (some) business method patents are "still potentially valid", as you yourself admitted (emphasis mine), it's not a case of "paving the way"-- it's a case of "failing to block the way as much as we might have hoped." The only way it could have been "paving the way" is if it made more patents possible--but it did just the opposite.

Software Patents are...

[Anonymous Coward]

Software Patents are stupid. Unless we are talking about my patent...

Not all patents should be disallowed

[ergrthjuyt]

Software patents need to get much more stringent, and the terms should be much shorter, but I think it would stifle innovation to disallow them altogether. There are some really innovative things happening all the time in software and they take money and time to research. Amazon's one-click checkout doesnt count.

Re:Not all patents should be disallowed

[AndersOSU]

What could happen is that some company realizes that the only thing really holding them back is the competitive advantage amazon controls in it's one-click patent. If only they could implement one-click shopping they'd take the world by storm. So, they relocate to Auckland, set up shop and relaunch their website now with all the glory of one-click. When they make their first billion dollars, instead of paying $250 million in taxes to the US, now the kiwis get it.

Re:Not all patents should be disallowed

[bieber]

You're fundamentally misunderstanding patents. If you patent your software technique, that absolutely does prevent me from reimplementing it in a novel way. In fact, that's exactly the purpose of a patent: it prevents your competitors from using your idea. Not your specific implementation, but any implementation of your idea. You think the terms should be much shorter, so how much shorter? How about three years? How great do you think your computing experience would be today if every new idea in computing that's less than three years old was the exclusive property of a single firm and couldn't be reimplemented by competitors (or even F/OSS software, which obviously could never pay license fees on patents)?

Re:Not all patents should be disallowed

[bieber]

...because I copy code that others have explicitly given me permission to copy without paying them royalties, the same way I allow others to copy my code? If there's already a good solution to the problem you're trying to solve that you can use with an include statement, why in the world wouldn't you? How could you possibly consider it productive to needlessly duplicate someone else's work when you could be busy building something new and useful of your own? Regardless, patents have nothing to do with copying code, but rather with implementing algorithms.

If a problem has been solved, the only reason you would want a different one is if it does a better job at solving that problem (or if you find it amusing to find a new solution, which is a perfectly valid reason to pursue solutions, but not of any particular benefit to society at large). You may want different solutions for subtly different problems, but if you're dealing with the same problem in either case, the optimal solution will always be optimal.

If I need a data structure that I can allocate dynamically and traverse cheaply in one direction, then I want a singly linked list. If you patent the singly linked list and force me to look for a different solution, I'm not going to find a better one, and it's unlikely that even the most brilliant minds in computer science would find a better solution. What you will end up with are myriad sub-optimal solutions being used all over the place not because it makes any sense to use them, but because no one can use the one that does make sense. In reality, you just end up with things like VP8, which is, as I understand it, remarkably similar but slightly inferior to H.264. It does the job, it works well enough, but it's still not quite as good as what it's working around. That's the kind of "innovation" you get from software patents.

Now, as for the good type of innovation you seem to insist can only arise from restrictive licensing of mathematical concepts---more efficient solutions to existing problems, or modified solutions that solve subtly different problems more effectively---we have volumes full of algorithms that constitute exactly those sorts of innovations, and the vast majority of them predate software patents.

New Zealand is looking to be a better

[GilliamOS]

place to live everyday. The took away farm subsidiaries and now they have four times the output. No more patenting ideas that you will never try to build and sell, only to sue some other poor soul who's trying to make his life better. Not to mention the climate of NZ looks quite appealing. Imagine where touch tech would be today if some dipshit in the 80's hadn't locked it up in patents? The touch tech of the movies could already be common place.

Now watch the New Zealand Software Industry boom!

[Marcion]

If the New Zealand government manages to get the bill enacted without bowing to pressure from foreign patent trolls, then New Zealand will be a safe habour for genuine software firms wanting to get on with developing software. If the New Zealand Software Industry now booms, hopefully other regulators will take note.

Historians will look back and see patent trolling as one of those mad schemes of the first decade of the 21st Century, alongside subprime mortgages, leveraged investment vehicles and so on.

QT licence

[gbjbaanb]

remember the clause in the Q Public Licence that says "if you want to initiate legal procedings, you have to do it in a Norwegian court", well I have an amendment for the other OSS licences :)

Hopefully other countries will follow

[kyrio]

It won't matter if the USA doesn't do the same if every other country follows this change.

Re:If you live and work in NZ, great

[Anonymous Coward]

It could help/protect open source software since they only make source available. Now they don't have to worry about breaking the law (in NZ) in doing so. Will this lead to the U.S. blocking NZ sites?

Please let us know these "worthy" patents.

[Anonymous Coward]

Please let us know these "worthy" patents.

Compression is application of maths (not patentable). In any case, without compression, digital effects on movies would be impossible. Sales of movies would be still on VHS or Laserdisk. No digital theatres to get us away from our Home Theatres. Therefore IN THE INTERESTS OF MAKING MONEY, the entertainment industry would have invested in digital compression.

Just like the BBC did: http://diracvideo.org/about-dirac/

Because the BBC had a need and that need was cheaper to fill with compression techniques made available, compression would have been paid for by the BBC. The patents however allow monopoly rent, so rather than pay the license fees, they made their own.

Think about that.

When you sell copies, most of the work is done in the original work. This is what your comment is saying too. Therefore that cost has to be amortised over the licensing costs. This would (or should) mean that the cost of licensing that product, each product sold should be much less than the cost of developing that product. But for the BBC, this was not the case. It was cheaper to do all that work themselves than pay the amortised cost that lots of other people are paying for. This MUST mean that the original developers of all the compression techniques have made their money back many-fold. Either that or the BBC was going to be their ONLY customer...

If such robber baron rates are possible, then patents were the only reason it was possible.

If patents made them possible, they were being abused.

Therefore, the compression patents are a MASSIVE drain on the economy.

Since they are only an economic incentive created by government fiat, they should be removed. Sucks for the owners, but they've already made multiple times the development cost already, so hardly sucks at all. And with less money spent on old rope, there's more to be spent in PRODUCTIVE activities.

Re:Please let us know these "worthy" patents.

[Anonymous Coward]

This is like saying the Wright Brothers' airplane (probably patentable) was an application of a hammer, string, and nails (individually, not patentable).

You might want to check out the "fallacy" in Wikipedia: http://en.wikipedia.org/wiki/Fallacy

Ergrthjuyt is right - you deserve to reap the reward for your work, but definitely not forever. And certainly not for stupid crap (i.e. one click shopping).

international effects

[ciaran_o_riordan]

> this wouldn't help a NZ company if they sell outside NZ, correct?

The NZ government only has decision making power in NZ. For where they have power, they've decided to make companies safe. What NZ is doing is great and should be applauded and helped. It's up to the US government to make companies safe in the US.

On the international level, this sends two messages to other countries: 1. Countries aren't obliged to do what the US says regarding patent policy; 2. Abolition of software patents is a reasonable choice for developed countries.

These messages contribute to saner patent policy in other countries in the future, even in the US.

Let's Harmonize

[eddy]

If this happens for real, the rest of the world should harmonize to NZ standards. Right politicians and lawyers, harmonization is important, isn't it?

Rationale

[Anonymous Coward]

While I definitely think there are legitimate software patents

Opinion is worth nothing without rationale.

Re:Software Patents are anti-competitive

[Anonymous Coward]

Sadly your solution is so one-sided it'll never work.

First, let's consider the US company doing the suing...what if they have no assets the EU can touch? Oh my! Now the European Commission can sue them all they like, but what are they able to get from it? Nothing.

Not without the cooperation of the US government...which has its own unfairness laws, which protect the US company from the mean-old bullying EU.

Things don't exist in a vacuum.