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New Zealand Bans Software Patents
Nerdfest writes with news that New Zealand has, after going back and forth a couple of times, finally banned software patents. From the article: "New Zealand has finally passed a new Patents Bill that will effectively outlaw software patents after five years of debate, delay, and intense lobbying from multinational software vendors. Aptly-named Commerce Minister Craig Foss welcomed the modernization of patents law, saying it marked a 'significant step towards driving innovation in New Zealand'. An IITP poll of members at the time showed 94% of those with a view were in favor of banning software patents."
article title, and summary for that matter, are not exactly accurate. here's why (in great detail). http://www.fosspatents.com/2013/08/new-zealand-parliament-adopts-uk.html
So they've disallowed software patents, but allowed more extensive spying. Dammit New Zealand, you need to pick one.
Though, I will say that any company looking to develop software for a domestic market will be happy about this -- you likely can't export because the patents would be in place most everywhere else.
I'm sure right now there's an entire branch of the US government planning regime change, since the US has pinned their hopes to copyright and patents. It is, however, nice to see other countries saying "what's in it for us?"
Lost at C:>. Found at C.
now it's time for US to ban those patent trolls.... and really create "free competition"
Finally, there is light at the end of the tunnel!
A government does something that genuinely benefits its people.
about damn time
This is really important because it's the first time that a country has explicitly banned software patents, with knowledge of what it's doing.
Other jurisdictions have legislation which says software can't be patentable, like the European Patent Convention, but because it was written before software patents became a problem there are debates about the intention of the text.
Thanks to New Zealand, we'll have an example of a developed economy banning software patents, so there will be proof that it doesn't make an economy collapse etc.
More background here:
* http://en.swpat.org/wiki/New_Zealand_Patents_Bill_235
* http://en.swpat.org/wiki/New_Zealand
Expert in software patents or patent law? Contribute to the ESP wiki!
I wanted to see that Groklaw had to say about this. But thanks to the NSA etc. I can't. ...
This makes me both happy (for New Zealand) and sad
Since there is no such thing as a "software patent" in law, it's important to understand what has been changed, and to be clear about what could or should be changed. Here's the key wording of the new law. It's not patentable if:
"A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program."
In other words, if it's not a new invention, just an old invention with "on a computer" added to the end, it's not patentable. That is, if it's not a new invention if made of wood, it's still not new when made of silicon (or magnetic tracks).
I'm about as big a defender of "software patents" as you'll find on Slashdot and that to me is obviously right to me. If it's not new, it's not new.
Putting it on a computer doesn't make it new. Duh and yay for them for explicitly stating what should be obvious.
What they didn't change, and really can't as a practical matter, is they did not declare that a new invention magically becomes "not new" if it uses a computer.
If I invent a way to resurrect dinosaurs ala Jurassic Park, and they key invention for doing so is a gene sequencing computer program, that's a new invention.
The fact that I use software for it neither makes it new nor makes it "not new".
inb4 all patents are Imaginary Property.
i would like to import these and similar politicians that actually work to make things better for people rather than corporations to the US. even if everything else they do is horrible, i dont see how they could possibly fuck up the US more than our won politicians have.
Anons need not reply. Questions end with a question mark.
RMS could now move to New Zealand - the first country to ban software patents. Or he could move to China, where software patents are banned by de-facto practice - w/ every company happily copying whatever they feel like.
If you knew who Florian Mueller was, you would never quote him on anything.
That's the key.
Because in the current IP framework we have, software patents are necessary. Here's an example.
I create a machine to do something in a new and novel fashion. I do it using mechanical parts and gears (which are an implementation detail - the individual gears and such aren't really new or novel, just the way the machine works overall). I should be able to get a patent for that.
Now, I rip out the gears and put in motors and software to do the same thing the gears did, except instead of a bunch of gears doing what I invented, it's a computer program replicating the functionality. Is it suddenly unpatentable just because it's software rather than hardware?
Of course, the real solution to the IP mess is ot realize that software is its own IP category in and of itself. Copyrights and patents were easier before software - copyrights affected creative works that people did to communicate with other people. Patents affected things. You write a book, a song, a play, whatever and you copyrighted that because it was meant to be enjoyed by other humans. You can't really patent it because enjoyment isn't a utility. You can patent the printing press used to create the book, the machines used to record and play back, because those are things.
But now software comes and muddies the waters - because software isn't created to be normally enjoyed by others, but to be understood by machines. But it's created by humans and can have utility, which screws things up horribly.
Hence the need for new IP classification - because we're bending copyright and patent laws in ways they really never were meant to in order to accommodate software. I mean, think about it - what does it mean to 'copyright" software - is it the source code? Or the binary? Should the binary even be protected because it was a mechanical transformation? Instead software can be protected in its own category - we can have algorithmic protections used to protect algorithms (what is normally patented), and implementation protections used to protect specific implementation (copyrighted) including mechanically transformed versions. These terms can be remarkably short because of the speed at which software obsoletes itself - algorithms really only need 5 years tops, and the actual implementations, 10 years. (10 years is ages in software, but 5 years is much too short for stuff to lose protection. 10 years ago, the early versions of Windows XP and early 2.4 Linux kernels would be completely open. But not the later ones still protected. I don't think there's much contemporary hardware that can even use such old software)
I made it less clear than it could be by quoting too much from the clear. This law says it's not patentable if:
"if the actual contribution made by the alleged invention lies *solely* in it being a computer program."
So in other words, for any alleged invention, take out the words "software" and "computer" from the description.
Does it still sound like a new invention? If so, it's patentable. If not, it's not. It's either new or not, and it doesn't matter whether it's
made of smashed wood or powdered iron.
(Note that both "physical" machines and software machines can be made of either. My mom created some of her software by punching cards made of wood pulp, much as a carpenter would work wood to build some new invention. I created my first software by manipulating bits of iron to form machines.)
I'd add a clause that extends the implementation protection (say, by another five years) if you offer the complete source code to the public (having the source code available is a benefit for the public, therefore it makes sense to give an extra bonus). The source code would have to be published before the original 10 year period ends.
well done New Zealand!
You're looking at the 2010 version. The version that passed replaces that line with saying that it;s not patentable if the only thing new about it is "on a computer".
As passed, new inventions are new inventions - whether computers are involved or not.
You'll never see that happen in the good old fucked up USA.
They want to legalize piracy (i.e. FOSS) because they can't make software people want to pay money for.
/. readers who do not understand what is so painfully clear.
I pity
The cost of MS office site licenses, adobe photo shop and a swack of other US written software just went up in New Zealand. Considering Microsoft cannot patent the essential xml word processing core that locks in cloud based MS office users and neither can the cloud xml routines in Photo Shop that lock the customer to both Microsoft and Adobe for off site file storage and or remote processing routines. This was how this whole thing started with Microsoft applying to patent the cloud xml hooks in Word and New Zealand balking at the idea as being not unique enough to warrant a monopoly patent on cloud based word processing. Funny but Google has been doing cloud based word processing for years, now Microshaft comes along and tries to patent it. ROLF, problem is they already succeeded in North America and everybody ignores the fact.
This message was not sent from an iPhone because Peter Sellers really was a deviated prevert without a dime for the call
I think that the source code should have to be included as part of the patent application process. So that it can be examined to verify how novel the "invention" really is. And also to ensure that the code really does what the patent claims. The code should then be held in escrow (so as to allow them to keep it closed source for the time of the patent) and after the patent expires, the code should be available along with all the other patent documentation. A patent is of no use to the public good if nobody can actually use it after the patent expires.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
The Techdirt article you've cited to try to "prove me wrong" quotes the bill as follows:
"where the actual contribution of an invention lies solely in it being a computer program, it is ineligible for patent protection... it will not be possible to obtain a patent for an invention that involves or makes use of the computer program if the sole inventive feature is that it is a computer program".
In other words, exactly what I said.
I believe so, and I believe the bounce back patent is a good example - they didn't invent bouncing.
On the other hand, a meter could display the result of some new invention. We know progress meters are almost useless, especially in software but in
other areas as well. The fact that they've built 90% of the a new stealth fighter's parts doesn't mean the project is nearly complete, given that they've
completed the bolts but not the computer system. If someone INVENTED a new thing to measure progress accurately, that new invention would
be new whether it was displayed on a stick or on a screen.
I think that the source code should have to be included as part of the patent application process. So that it can be examined to verify how novel the "invention" really is.
That's interesting. I think the exact opposite. I think that line of thinking, that using new code to do the same old thing makes it new, is exactly what created the problem. I think it would be better to know whether something is new by NOT mentioning if it's on a computer or not. Just say what it DOES. Does it do something new? If so, great, if not, buh-bye. I don't care if you use gears or code to do it.
Math textbooks are not created to be enjoyed by other people, but they do have utility for other people. Yet no one would think of patenting textbooks. Copyright works just fine.
Likewise, copyright works just fine for software. No new IP category required.
The Techdirt article you've cited to try to "prove me wrong" quotes the bill as follows:
"where the actual contribution of an invention lies solely in it being a computer program, it is ineligible for patent protection... it will not be possible to obtain a patent for an invention that involves or makes use of the computer program if the sole inventive feature is that it is a computer program".
In other words, exactly what I said.
Where this gets really fun is when the argument is presented that "the program" and "the computer" are analog, rather than digital. A hole you could pilot an aircraft carrier through.
A feeling of having made the same mistake before: Deja Foobar
I think you're absolutely correct in the first part of what you said, which is why the second part makes no sense to me. You said:
> I create a machine to do something in a new and novel fashion. I do it using mechanical parts and gears (which are an implementation detail -
> the individual gears and such aren't really new or novel, just the way the machine works overall). I should be able to get a patent for that.
> Now, I rip out the gears and put in motors and software to do the same thing the gears did
It's the invention itself that's patentable. Whether you build a particular version of the invention from gears (metal) or Gears (software) makes no difference -
you might well do both. You could have a crank up gear version that sells for $3 and an electronic version of the same invention for $30. It's the invention
that's patented, not a particular build of it. We agree on that, right?
So why a whole new class of IP separate from patents. Patents cover "useful things". Programs are useful things. I don't see any reason to treat things differently whether they are built of wood, silicone, or silicon.
I do also agree on shorter patent terms, by the way, because the rate of technological change has increased. Technology didn't change nearly much from 1880 - 1900 as it did from 1980 - 2000. Not just with computers - biomedical technology, energy technologies, we're in a faster paced world now, so faster paced patent expiration makes sense. (Also MUCH faster copyright expiration.)
You raise a good point. However, the utility of something that's patented is that it (ostensibly) solves a problem. It's a way for an inventor to say "I/we figured out how to do X in a way that's novel and unique to me/us". In the spirit of the patent, the actual method for solving X is detailed in such a way that its uniqueness and utility can be independently verified by experts. The actual patent application is public domain so other inventors can figure out another way to solve X or make sure they don't violate someone else's patent inadvertently. The opportunity to skin the cat differently provides a spur to innovation. As an incentive to sharing this knowledge, the government provides a time-limited monopoly for the inventor to leverage the patent for financial gain. Moreover, a patent cannot be granted for a problem that does not have alternate solutions.
In the case of software, the "problems" that the solutions solve have gotten too large or broad. Instead of a single novel way for compressing audio, you get a method for end-to-end streaming music that gets patented. We may be better served if the patent were denied on the basis that the problem is "too large or broad" and the patent needs to be broken up. A good (and requisite) car example of this "too large or broad" application would be Tesla patenting their entire Model S sedan under a single patent. The components of the Model S solve a multitude of problems (propulsion method, vehicle management, secure APIs :), etc.), but patenting the entire car would never happen, and, in fact, the car's components are individually patented. The same standard should be applied to software. Break the software up into its component parts and have those patented individually or not at all. (I realize this would likely result in a deluge of patent applications, but forcing the source code for the solution to be included in the patent would make a huge difference here.)
A completely separate problem are that many patents are granted and the inventor(s) simply sit on the technology. Such a failure to actively attempt financial gain from a patent should be grounds for invalidating the patent, but that's a separate vein entirely.
> "It isn't a new invention if it is just software -- it must be part of a greater whole, such as an embedded device."
I see how to you got that idea, but read more carefully. What the examples are intended to show is that:
a) assume the washing machine has no new mechanics, so the washing machine is not patentable.
b) putting a computer program into the washing machine ALSO isn't patentable. That's the point of the law.
c) the computer chip may contain a program which IS a new invention and that program may be patentable.
d) it's patentable not BECAUSE it's a program, it's patentable because it's a new invention - being software is irrelevant
Does this law prevent a "computer product" patent "comprising" a recordable medium containing instructions that when executed by a computer processor perform the steps of: a) [do some obvious stuff] b) [do some more obvious stuff] c) [do some more stuff people didn't both writing down on paper b/c it was so damn obvious to anyone in the field] Just wondering... (PS: for those who don't know patent lingo, the preamble in my first sentence is how patent agents in some countries get around "computer program" exceptions... I kid you not)
If I invent a way to resurrect dinosaurs ala Jurassic Park, and they key invention for doing so is a gene sequencing computer program, that's a new invention.
No, for two reasons. First, the "gene sequencing computer program" is nothing more or less than a mathematical function transforming abstract input data to abstract output data. Mathematical functions are not new; you don't invent them, you discover them. As non-patentable subject matter, it ought to be impossible to infringe on any patent simply by describing a mathematical function to someone, whether in traditional mathematical notation or in the form of a computer program, or by evaluating it, whether mentally, with pen and paper, or with a computer.
Second, you can't resurrect dinosaurs using nothing but a computer program. Merely running a program doesn't change anything in the real world. The "key invention" would be some kind of biological cloning process, not "a gene sequencing computer program", even if the program gives you useful data for the process. If the cloning process already existed, and you just lacked the data to make it work for dinosaurs, then too bad—there's nothing new to patent. At least you get to make some cool dinosaurs, assuming whoever holds the patent on the cloning process doesn't stop you.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
Obviously patents are for new inventions. Something that does something new, or does it in a new, better way.
A math textbook isn't a new invention, it doesn't do anything new. The first person to invent a book could have patented it.
Google's self-driving car may very well have something new in it. That new invention is patentable. After they invent it and patent it,
they might build it. When they build it, they might build it from steel, glass, rubber, magnetic disks, or brass. Maybe two or three different version made from different materials. Does it matter what material they use to make it? Why are magnetic particles somehow special?
I sure hope that they can define it. Software is a means -- one means -- to realizing a technique. Either the technique is novel, and useful, and patentable, or it's not.
I'm afraid you're entirely theory falls completely flat when you realize that gears and levers are devices for doing multiplication.
ANY machine can be described with a mathematical function. Therefore, if you were correct that anything which can be described as a mathematical function is not patentable, machines are not patentable. Machines are patentable, and carry out functions, ergo you are mistaken.
What is true is that one cannot patent the fundamental laws of math or other "natural laws". You can, however, patent novel USES of natural laws.
You can't patent gravity, you can patent elevators. You can't patent division, you can patent the GIF method for image compression.
You can't patent friction, you can patent new tire inventions.
That's right. Your gene sequencing computer program should not be patentable because it's an abstract idea. That's independent of whether you implemented that abstract idea on a computer.
You be right, my example may not have been the best. I haven't looked carefully at "abstract idea" and how that applies to patents (or doesn't).
> That's independent of whether you implemented that abstract idea on a computer.
Indeed. If it's not patentable, it's not patentable. Not if built of wood, not if built of magnetic iron dust (on a hard drive).
If it is, it is. What one example is made from doesn't matter.
Maybe because an analog computer is usually not a general purpose computer (except maybe for the Difference Engine, but in the picture on the Wikipedia page even that looks quite inventive to me).
To be, or not to be: isn't that quite logical, Slashdot Beta?
For crying out loud, they did indeed ban software patents, and if you don't believe me you can read all about it in that bastion of liberal OSS-using freethinkers, Forbes. Here's the link: http://www.forbes.com/sites/reuvencohen/2013/05/08/new-zealand-government-announces-that-software-will-no-longer-be-patentable/ The critical part of the law is not the subsection everyone is arguing over, but what comes before it, which seems to me unequivocal about what is no longer allowed:
"(1) A computer program is not an invention and not a manner of manufacture for the purposes of this Act."
This guy Florian Mueller who may or may not be a corporate shill has got everyone confused by focusing on the legal subtleties of a subsection, but the fact remains that computer programs by themselves are no longer patentable, because the law states they are not considered to be inventions! Don't believe the FUD.
Except it doesn't. IN the US, you can add to an existing patent. If that addition is it's ot all done in software thats fine, and how it should be.
Software patents parent the problem. Method patents are, and software patent issues are a symptom of that issue..
Are you saying a digital clock isn't an improvement of a analog clock?
You might a well say anti-gravity cars aren't patenable because we have cars.
The Kruger Dunning explains most post on
Software works in an abstract world, just like mathematics. Unlike real processor designs (or, indeed, even FPGAs), the software is working in a fictitious reality where everything is set to work as it was written to work.
Just like maths.
Therefore, just like maths is not, even if absolutely a new idea, patentable.
Here's the thought: if you have your program that you think so very very unique, I rewrite it in FORTH. The only thing I can have copied is the maths. And the maths is not patentable.
Therefore my program is not infringing on your patent. Otherwise, to have my program infringe, you'd have to be patenting either the maths (which isn't patentable) or any way of getting the result (therefore patenting the problem, or the solution, but definitely NOT the method, which is the ONLY thing that patents apply to).
So, yes, your computer made of a motor and software and plain stepper motors rather than gears, is not patentable because the combination is not expressing the method of solution, only the software is. If you want a patent on it, patent it as gears set in a complex motor, where you have to design the gears to get around the REAL WORLD problems of stiction, gear ratio hogging, the ability to make consistent gear teeth, the ability of the gear to maintain torque, feedback, creep, and all those other things that you have to discover the best way to run around which makes your method unique and worthy of patent.
Here is the list of what can not be patented -
Clause 13 - Patentable inventions
An invention is a patentable invention if the invention, so far as claimed in a claim,—
(a)is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies; and
(b)when compared with the prior art base—
(i)is novel; and
(ii)involves an inventive step; and
(c)is useful; and
(d)is not excluded from being a patentable invention under section 14 or 15.
Section 14 - Inventions contrary to public order or morality not patentable inventions
(1)An invention is not a patentable invention if the commercial exploitation of the invention, so far as claimed in a claim, is contrary to—
(a)public order (which in this section has the same meaning as the term ordre public as used in Article 27.2 of the TRIPS agreement); or
(b)morality.
Examples
The commercial exploitation of the following inventions is contrary to public order or morality and, accordingly, those inventions are not patentable:
an invention that is a process for cloning human beings:
an invention that is a process for modifying the germ line genetic identity of human beings:
an invention that involves the use of human embryos for industrial or commercial purposes:
an invention that is a process for modifying the genetic identity of animals that is likely to cause them suffering without any substantial medical benefit to human beings or animals, or an invention that is an animal resulting from such a process.
(2)For the purposes of subsection (1), commercial exploitation must not be regarded as contrary to public order or morality only because it is prohibited by any law in force in New Zealand.
(3)The Commissioner may, for the purpose of making a decision under this section, seek advice from the Mori advisory committee or any person that the Commissioner considers appropriate
Section 15 - Other exclusions
(1)Human beings, and biological processes for their generation, are not patentable inventions.
(2)An invention of a method of treatment of human beings by surgery or therapy is not a patentable invention.
(3)An invention of a method of diagnosis practised on human beings is not a patentable invention.
(3A)A computer program is not a patentable invention.
(4)A plant variety is not a patentable invention.
(5)For the purposes of subsection (4), plant variety has the same meaning as that given to the term variety in section 2 of the Plant Variety Rights Act 1987.
So if I am reading this right, not only are software patent trolls throwing a fit, but Monsanto probably is to
even the basics of what can be patented:
"invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.""
Start here:
http://www.uspto.gov/patents/resources/general_info_concerning_patents.pdf
The Kruger Dunning explains most post on
As a NZ developer, this news makes me sooooooooooooooooooo happy. That is all.
Copyright still in effect? No worries then.
Have gnu, will travel.
Take the actual source code away from the program and you're left with some fairly obscurely doped materials of high quality and cost with the ability to be a really bad door-stop.
The software is the absolute equivalent of a technical drawing of a machine.
Without a tech drawing of the machine being patented, there is nothing there to patent.
Without a source code list of the software being patented, there is nothing there to patent.
Go on, a simple clock. Look at the patents on time mechanisms used in clocks (expired now).
Look at what was patented. Methods of fixing the problems that are not part of the problem specification: "A thing to measure equal intervals and sum their elapsed count". That, basically, is all a clock is, right? And if you made it software, then it would no more be a novel clock than someone using a pendulum.
However, this is where it gets different.
In the software world, everything is artifical. The interval of time BY DEFINITION is the CPU clock tick. Just add them up.
In the real world, even if you defined it as so many state changes of a Caesium atom (SI definition in Metrology), you have the problem that your mechanism has to manage to do that count and at a price/size/expense point that works. So you get a simple pendulum. Except there's thermal expansion. So you find a way to compensate. And THAT gets a patent.
Then you want a clock that can move with the observer rather than stay at home.
So you find a way to get a regular beat without a pendulum. Spring casement. And you get a patent for THAT.
But you now have a bigger thermal issue and the simple solution you had for the pendulum isn't good enough. So you find a way to correct for it or invent a new alloy that is much less affected by thermal expansion over the range it will have to operate. And you get a patent for THAT.
What, precisely, are the softare versions of these problems for which a patent was allowed? NOT ONE OF THEM got a patent on "Telling time on a Clock face".
"So what are you in for?"
"I patented some software..."
Well yes, one could invent a new material. If the process or machine is new, the material isn't relevant.
You are mistaken about what the NZ law says. I've quoted it several times, and other commentors have as well. The new NZ law says it's not patentable if the ONLY new thing about it is "in software". So GIF would be unpatentable only if it was previously done in hardware.
Does this law prevent a "computer product" patent "comprising" a recordable medium containing instructions that when executed by a computer processor perform the steps of: a)
do a software emulation of the non-obvious stuff this hardware did.
That's the wording the company's (US) patent lawyers hung on the end of my hardware patents, to keep people from emulating them in FPGAs or software on a really fast processor.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
How about Software Machine Patents? Treat the program as a machine, and let you patent it. Of course you must include full source code in the patent application in order to let others duplicate your work. And clearly short time periods are called for, 5 to 10 years max. Copyright is useless for software as any cross compiler can render it so different that it doesn't match yet still does the same thing.
Errr, didn't you say:
The version that passed replaces that line with saying that it;s not patentable if the only thing new about it is "on a computer".
As passed, new inventions are new inventions - whether computers are involved or not.
So:
"where the actual contribution of an invention lies solely in it being a computer program, it is ineligible for patent protection... it will not be possible to obtain a patent for an invention that involves or makes use of the computer program if the sole inventive feature is that it is a computer program"
Does not seem to be exactly what you said. It seems to be saying that computer programs by themselves, even if completely novel, are ineligible for patent protection, not just that computer programs can only be patented if the function they perform is novel.
I create a machine to do something in a new and novel fashion. I do it using mechanical parts and gears (which are an implementation detail - the individual gears and such aren't really new or novel, just the way the machine works overall). I should be able to get a patent for that.
Now, I rip out the gears and put in motors and software to do the same thing the gears did, except instead of a bunch of gears doing what I invented, it's a computer program replicating the functionality. Is it suddenly unpatentable just because it's software rather than hardware?
You do realize that your machine using mechanical parts and gears and your computer program are different devices, right? See, the way patents are supposed to work is that, regardless how new and novel the function of your machine, patenting one device that performs that function isn't supposed to give you a broad patent on all means of performing that function, just on the particular device you made. If someone came along and used a different arrangement of mechanical parts and gears that gets the same results, but does it in a different way, that is meant to be a separate invention and not covered by your patent.
How do you feel about Apples recent winning over Samsung.
If you didn't read about it, Samsung violated Apples patents on "rounded corners on a phone" and "high resolution program icons".
I actually agree with your interpretation of patent law, but the problem is that for every good interpretation there are 100 "bad" ones, such as "the bounce back" progress bar you claim Apple didn't invent. I've seen it argued successfully that they did.
Another question, lets say we allow patenting of complex applications, not including trivial apparatus like scroll bars or mouse cursors. I'm talking about things like "Operating Systems" or "First Person Shooters" or "Leveling Up". Do you think the software industry would have grown as it has over the past 30 years if only ID software could make FPS games, only IBM could make Operating Systems, and "Leveling Up" was a game mechanic only legally sanctioned by Square Enix?
Just examples of some of the legends in the industry, I don't think these guys were first in anything and I don't think they nor their respective industries would have came to fruition if software patents were handed out then like they are today.
where the actual contribution of an invention lies solely in it being a computer program, it is ineligible for patent protection... it will not be possible to obtain a patent for an invention that involves or makes use of the computer program if the sole inventive feature is that it is a computer program
It seems to be saying that computer programs by themselves, even if completely novel, are ineligible for patent protection
Maybe I've spend too much time learning to read patent law (and copyright law), but I'm baffled how you think it says that. It's clearly saying the only time you can't get a patent is if the *sole* contribution is that it's a program. A "contribution" means "the new thing I'm teaching the world."
Consider the classic software-patent-catastrophy example, the GIF patent. It is a purely mathematical contribution teaching how to convert one series of numbers (representing a picture) into a shorter series of numbers (representing the identical picture). This is "useful" because the picture can now be stored in a computer using less memory, and because the picture can be sent over the internet more quickly. That's the "contribution".
The law mandates that this sort of pure software patent, pure mathematics patent, must be patentable.
The only thing excluded is a patent which contributes NOTHING beyond adding the words "on a computer" to some old non-patentable thing.
And we have many in the software community cheering victory, when in fact this is a complete bait-and-switch defeat.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
That particular clause says if the novel part is "solely in it being a computer program". "Lies solely in being" is a wordy way of saying "Only because it is", so let's make it clearer by using those clearer words which have the exact same meaningm:
[if it's new] Only because it's a computer program ...
So if it's "new" only because it's a computer program, it's not eligible. On the other hand, if it's new for some other reason, that's not new "solely in being a computer program", that's independent novelty and therefore eligible.
> And we have many in the software community cheering victory,
> when in fact this is a complete bait-and-switch defeat.
It seems to me that doing the same old thing "with a computer" is what shouldn't be patentable. On the other hand, a truly new invention should be treated as such, whether it uses wood, metal, silicon, or cat hair. An old idea is an old idea, a new invention is a new invention. That's what this law says, so I think it's a victory for common sense.
If software innovations do not have patent protection, then they still have trade secret protection. This is a good thing because it takes care of the non-obvious problem that many current patents fail. If an innovation is truly an innovation, then it should be hard to implement. As long as the innovation is non-obvious it will be hard to implement and trade secret protection will give companies the protection they need for their innovation.
If your "invention" is so basic that it's just motors and math, you should not be able to get the patent in the first place.
The patent on motors ran out long ago, and math is simply description of numerical facts (if you take two rocks, and then put another two rocks over to the first two, you'll have four rocks, no matter which planet you are on, and no matter whether or not math has been invented yet).
I never understood that. It seems that software should be under copyright, not patents.
Part of the court's job (here in the UK, at least, and undoubtedly therefore in NZ as well) is to decide what the legislators intended when they drew up the instrument in question - not just what the words can be argued to say. So here we have, on the one hand, a clear, unambiguous and unqualified statement that computer programs are NOT patentable, and on the other a very literal reading of part of the detailed wording that would mean that almost all programs WERE patentable (i.e. not excluded by virtue, of having already been previously implemented wholly in hardware**.
I know where my money is. This act bans software patents. Don't go betting the farm on any weasel arguments to the contrary.
**Whatever, indeed, THAT means in legal terms, given that a good argument could be made that even the cards controlling a Jacquard loom are "software".
>In other words, if it's not a new invention, just an old invention with "on a computer" added to the end, it's not patentable. That is, if it's not a new invention if made of wood, it's still not new when made of silicon (or magnetic tracks).
Um, which is how it works in this country, too. See, e.g., the CAFC's landmark 2013 case Alice Bank v. Ultramercial, in which the Court, while disagreeing on underlying policy, emphatically underscored this point. So what's the brouhaha? Apparently, software patents are illegal here, too, right?
> India was there first :-)
I love being corrected (I expand the en.swpat.org wiki each time), but my recollection is that India rejected a law that would have explicitly allowed software patents. They didn't change the existing law to block them.
Expert in software patents or patent law? Contribute to the ESP wiki!
If you can't own something in perpetuity and pass it to your heirs then strictly speaking it is not property. Therein lies the whole problem, you are trying to enforce something that is unenforceable. Who is to say you didn't get x y or z note from Beethoven. And shouldn't his heirs today retain ownership of his works from hundreds of years ago? What if you use an interval on a certain instrument the same as another. This is what copyright and patent law devolves to eventually. The USA was built on "stealing" copyrighted British works and reprinting them in the US without paying royalties. And good on them. But today the US is the tyrannical enforcer of this nonsense that should never have been allowed to exist. Yes there will be some restructuring of the marketplace in the short term, but long term everyone will gain. It's anti-capitalist to think you can monopolize an idea. Property can and should only pertain to actual property not imaginary property. If I copy it, that's not stealing. I encourage anyone whose interested in this debate to get themselves over to Mises.org and read up on the forums and many free books explaining how not only copyright and patent laws are philosophically fraudulent but how they enable a dangerous monopoly in government, give them unwarranted commercial powers to favor one or the other individual or corporation in the marketplace, which leads to corruption, insider trading and just a ballooning of legal costs and restrictions on the development of new ideas.
It seems like we're reading the part about the sole inventive feature being that it is a computer program a little differently, so we're coming up with different interpretations. My perspective on computer programs is that they're always implementations of some kind of algorithm or design that isn't a computer program, so there's no such thing as a solo computer program that qualifies as an invention. It just seems so intuitive and obvious to me that it's hard to understand how anyone can read it differently. Of course, I have to acknowledge that the reality of the situation is that legal types are going to mostly interpret it the way you are.
Yes and no. You called that a "landmark case" this year, suggesting that it was previously unclear, and would remain unclear in cases not clearly bound by Bank.
A REASONABLE reading of US statute would be to realize that it says "novel invention", nowhere does it say "on a computer". Therefore, people with reading comprehension problems think that means either a) doing the same old thing is patentable if you add the words "on a computer" or b) brand new inventions are not patentable if they are on a computer. Sure, both are silly interpretations of US law, but they are COMMON interpretations. The new NZ law spells it out in plain English.
So yeah, it's the same as US law IF the person reading US law has any common sense. Unfortunately, common sense isn't all that common in this area. Same as partial birth abortion - zealotry for a political stance makes people blind to the obvious.
That's what this law says, so I think it's a victory for common sense.
No. Common sense says that new-poetry is not an invention, new-movie-plots are not an invention, and new-math is not an invention. A survey of programmers found 94% of programmers saying it's not an invention. And pardon my America-centric reference here, but the U.S. Supreme Court said it's not an invention:
[this] Court explained the correct procedure for analyzing a patent claim employing a mathematical algorithm. Under this procedure, the algorithm is treated for 101 purposes as though it were a familiar part of the prior art; the claim is then examined to determine whether it discloses "some other inventive concept."
Software is nothing more than a particular form of written-out algorithm. "New software" is nothing more than a written out "new math algorithm". All software is required to be treated as familiar prior art. You can certainly list software inside or in conjunction with an invention, the presence of software obviously doesn't remove patentability, but software itself cannot be an invention. "new math" cannot provide the requisite novelty or non-obviousness. Describing a new math algorithm isn't an invention, you only have an invention if you disclose "some other inventive concept" beyond the (presumed familiar prior art) software.
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Im sick and tired of hearing about patent dispute over software when software should never fall under patent laws. Software should only ever fall under copy right laws
My perspective on computer programs is that they're always implementations of some kind of algorithm
Agreed :)
And you'll probably appreciate this U.S. Supreme Court quote:
[this] Court explained the correct procedure for analyzing a patent claim employing a mathematical algorithm. Under this procedure, the algorithm is treated for 101 purposes as though it were a familiar part of the prior art; the claim is then examined to determine whether it discloses 'some other inventive concept.'
It just seems so intuitive and obvious to me that it's hard to understand how anyone can read it differently.
Yep and yep. It has been a long and painful wrapping my head around the language and logic they use. Unfortunately being able to read it has pretty much only accomplished one-way communication so far. Every time I discuss it with a software-patent advocate I can't seem to get them to wrap their head around the (obvious to us) point that certain patent-claims disclose nothing more than new-math, and that a new math equation or new math function or new math algorithm isn't an invention.
Hell, the New Zealand law was uncommonly easy to understand. In a lot of these cases they state "Software, as such, is not patentable", without the extra explanation given in this law. Now, I'm sure you look at that and think it says software isn't patentable. But in their language "software, as such" means "software that doesn't do anything". You see, you're not claiming a patent on the software (as such), you're claiming a patent on software that does something.... you're claiming what the software does. And what the software does isn't "software as such".
Laws that loudly and pointlessly proclaim they exclude patents on "software-that-does-nothing". If you ever see "as such", that's what it means.
Yeah. Painful.
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Oh, a little clarification on the US Supreme Court and US law.
The Supreme Court handed down some good, but somewhat murky, rulings a few decades ago. Since then the lower courts have gone batshit insane throwing out all limitations on patentability.
Part of the reason is that many court cases involving a megacorp on one side demanding they be given a patent on X, and on the other side is some lawyer from the patent office arguing X isn't a valid invention. And of course the army of megacorp lawyers tends to steamroll the patent office lawyer, establishing some new tidbit of twisted precedence. Case, after case, after case, they steadily pushed the line (and the rules) off into the Twilight Zone.
Oh, and the corporations are free to file their case in any US district they want. So they ALL file in the same district... the Eastern District of Texas. That district has a well deserved reputation for judges having the most extreme ideology, granting and uphold anything that has the word "patent" scribbled on it in crayon.
In the last few years the Supreme Court has taken notice and started issuing some harsh smackdowns against the nutty logic of the lower courts. Unfortunately the Supreme Court has been issuing "narrow" rulings, basically they've stated that X Y and Z are insane interpretations of patent law, they've said invalid patents are being granted, but haven't clarified which or how many invalid patents are being granted, and basically all the Supreme Court said is "Yo, you're fucking up, go back and follow our old rulings on patents". Except the lower courts have spent the last few decades becoming experts in how to actively not understand those Supreme Court rulings.
So, the current general practice of US patent law is that they still accept insane patents from Twilight Zone, but the judges know most of the basis for doing so has been struck down, and the judges are arguing with each other in utter confusion desperately trying to figure out some coherent set of logic and rules.
And a major problem is that any sane set of rules, anything coherent with the old Supreme Court rules, is basically going to invalidate over a HUNDRED THOUSAND existing patents. Many of the district judges are dead set on the mindset that those patents are valid, and the more reasonable judges are insecure at the prospect of making a "radical" ruling that would create chaos by invalidating vast numbers of existing patents.
Ummm... this post was supposed to be a "small note" explaining the Supreme Court quote from my other post, and why we're in a mess despite having that obvious-solution quote. I guess I got carried away. Chuckle.
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http://yro.slashdot.org/comments.pl?sid=4127345&cid=44701775
APK
P.S.=> Main Question = What EXACTLY can't my hosts file do that I listed there?
Funny YOU AVOID THAT - Especially after you said it CAN'T do all I listed!
Well, ok - Now you can PROVE it! Go for it... see you there beneath that link above, or here if you like, SHOULD it expire (seeing as I've waited on your answer for more than a week now).
(Good luck - nobody ever has disproved me on those points in favor of custom hosts files giving users of them more speed, security, reliability, & even added anonymity to an extent))... apk