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!

[Verdatum]

Actually, he's violating Steve Jobs' entirely separate patent on "Thinking for yourself on a computer".

Re:Huzzah!

[Xtifr]

"Meanwhile"? Unless you've got a very broad definition of that word, I think I have to disagree. Business method patents came in with State Street back in '98. And while this year's SC decision in Bilski didn't go as far as many (including me) might have hoped, it did actually cut back quite a bit on what's patentable. See, for example, this Groklaw article on a post-Bilsk software patent rejection.

I think a better statement might be, "meanwhile, in the US, the way for business method patents has been only partially blocked."

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!

[dov_0]

A patent is there to encourage innovation by making it possible for inventors to profit, yes? Well why don't patents become invalid after a certain number of years if no product is released? Say, 2 years for software and 5 or 10 years for technology at the discretion of the patent office.

There are pros and cons.

[Anonymous Coward]

Sure. The pros oppose software patents, the cons support them.

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 :)

One important caveat

[Artem S. Tashkinov]

Some news sources over the Internet state that according to the proposed law inventions for software destined for embedded systems will remain patentable, which IMO doesn't sound/look good since it opens a loophole for dirty manoeuvres.

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?

Re:If you live and work in NZ, great

[Tanuki64]

Don't know if this is so great for NZ. If this decision hurts the US economy too much, there might be weapons of mass destruction be found in NZ.

Immigration

[Lando]

Anyone know what the immigration laws are for NZ? I'm real tired of having to worry about getting sued for the software I work on.

Any other issues with NZ law? They aren't trying to filter the internet or anything are they?

Re:Immigration

[SiaFhir]

Everything you need to know about migrating to NZ is here.

This isn't over at all

[ciaran_o_riordan]

The most important point is that this isn't over. The Bill isn't even written yet, nor are the patent office guidelines. Background info:

• New Zealand returns to abolition of software patents
• New Zealand software patents victory crumbling (June)
• New Zealand govt against software patents! (March)

Re:Not all patents should be disallowed

[Draek]

There are some really innovative things happening all the time in software and they take money and time to research.

Same for Mathematics yet they're unpatentable *and* uncopyrightable. Yet innovation goes on.

Re:As a software patent holder..

[Anonymous Coward]

You can sell the software just fine without patents. It'll take time for competitors to catch up and if you're constantly improving your software, instead of sitting on your ass, then you're always going to be ahead. In fact, the competition will motivate you to continue working on your algorithms and your clients will be better off.

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.

Software Patents are anti-competitive

[Marcion]

exporting software would still require the software to respect laws in the the countries that the software was sold in.

I have long thought about this. I live in the EU, and the software patents are not valid (but they sometimes grant them anyway). I would make an unfair competition law to prevent foreign governments using their patent systems to stymie EU-based software firms.

The way it would work is as follows, an EU firm creates a program and sells or gives it away in the US (or other country with nonsense software patent systems). A US company sues for patent infringement damages in US court. The EU company pays but takes the receipt back to the EU.

The EU software firm then hands the receipt to the European Commission who then sues the US company under my new unfair-competition law. The European Commission recovers the damages back and hands them back to the EU software firm. The European Commission charges punitive damages above the initial amount which it pockets itself to cover its own costs (or even make a profit).

The European Commission could make the process so easy that the EU-based software firm just carries on with making software and competing on the merits of the software.

That doesn't seem to be the right article

[Theaetetus]

"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.

Follow the link in the summary and you get:

It's official: Software will be unpatentable in NZ

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 unpatentable once the Bill passes into law.

And follow that link, and you get:

Simon Power 15 JULY, 2010 Minister announces way forward for software patents Commerce Minister Simon Power has instructed the Intellectual Property Office of New Zealand (IPONZ) to develop guidelines to allow inventions that contain embedded software to be patented.

So, seems to be the opposite of what the summary claims.

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)?