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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.
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!
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".
If you knew who Florian Mueller was, you would never quote him on anything.
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.)
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.
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.
Nobody uses MSFT anymore. They just use open source software suites.
At least in New Zealand.
(caveat - I am a published author in New Zealand and Australia under another legal name)
-- Tigger warning: This post may contain tiggers! --
> "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
...You can't patent division, you can patent the GIF method for image compression...
I think you are mistaken here under the New Zealand law. This change means that the GIF algorithm is no longer protected by a patent. You could build a dedicated device that compresses images using the GIF algoritm and get a patent for that device but your patent wouldn't stop someone else from writing a program that uses GIF compression for doing the same thing. It also wouldn't stop someone else from making a similar device but has a different form factor, controls, etc. Your patent now only stops people from actually copying your device or copying it and making only superficial changes.
Even more important, the New Zealand law means that the overly broad software patents that are common in the U.S. are not valid there. Extending the above example, the patent for GIF would probably be written as describing a method for compressing image data without loss. Some patent troll would then attempt to extort royalties from anyone using any lossless image compression algorithm (and even those using lossy algorithms if they thought they would win or get a settlement).
Cheers,
Dave
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
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.
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
"So what are you in for?"
"I patented some software..."