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NZ Draft Bill Rules Out Software Patents 194

Posted by timothy
from the plus-it's-beautiful-there dept.
Korgan writes "In what must be a first in the face of ACTA and US trade negotiations pressure, a Parliamentary select committee has released a draft bill that explicitly declares that software will no longer be patentable in New Zealand. FTA: 'Open source software champions have been influential in excluding software from the scope of patents in the new Patents Bill. Clause 15 of the draft Bill, as reported back from the Commerce Select Committee, lists a number of classes of invention which should not be patentable and includes the sub-clause "a computer program is not a patentable invention."'"
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NZ Draft Bill Rules Out Software Patents

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  • Finally! (Score:3, Funny)

    by WrongSizeGlass (838941) on Wednesday March 31, 2010 @05:19AM (#31684716)
    I say we patent this type of solution and then release it under a [insert name of least controversial open source license here] license so it can spread like Gonorrhea [slashdot.org] throughout other governments.
    • by dk90406 (797452)
      It is a step, but not perfect. "Embedded software" will be patentable. So put your software in a dedicated device (e.g. iPhone or temperature regulator) an you can patent it. But generic computer programs cannot be patented.
      • by tagno25 (1518033)
        iPhone is not an embedded device, a ATmega8 (and similar) would be though
      • That's good enough IMHO. Remind me, what exactly is the problem with embedded device patents?

  • by BiggerIsBetter (682164) on Wednesday March 31, 2010 @05:23AM (#31684748)

    It's still only a draft.

    • Re: (Score:3, Funny)

      by OglinTatas (710589)

      too much pressure and your draft comes out all foamy. I have found about 8 PSI gauge to be about right for cornelius kegs.

  • From TFA and TFS:

    a computer program is not a patentable invention

    OK, but what about a software concept? Can someone still patent "A method for preventing unauthorised access to files and system features through the use of a personal identification and verification system", as long as they don't have a single piece of software for this idea?

    That imaginary patent was about password protection in case anyone missed it...

    • Absolutely NOT. Software is copyrightable, not patentable.

      Are you related to Bill Clinton, and learned to parse words to death?

      • by bunratty (545641)
        You completely missed the point. Software isn't patentable. But isn't a clever and non-obvious algorithm an invention that could deserve patent protection?
        • by Znork (31774)

          But isn't a clever and non-obvious algorithm an invention that could deserve patent protection?

          Arguing about patents in terms of 'deserving' tends to distort reasoning; monopoly rights ignore the cost factor of the equation, ie, why should everyone else not 'deserve' to implement the same invention freely when they come up with it?

          Now, if you think certain non-obvious algorithms 'deserve' some kind of reward, then go ahead and argue we should pay the inventors rewards out of public funding or something. Or

        • Software isn't patentable. But isn't a clever and non-obvious algorithm an invention that could deserve patent protection?

          No, math should not be patentable. Only physical object should be patentable.

          Falcon

          Actually I support abolishing all patents. I'm not sure about copyright monopolies. The reproduction costs of words, images, and other media are low relative to the cost of the original object. So they may deserve limited monopolies.

          Falcon

    • I imagine you could still patent the concept as long as it was implemented as firmware but I assume the patent could not be used to stop others implementing the concept in software.

      Standard disclaimers - IANAL. I haven't RTFA.
      • Re: (Score:2, Insightful)

        by osu-neko (2604)

        I imagine you could still patent the concept as long as it was implemented as firmware but I assume the patent could not be used to stop others implementing the concept in software. Standard disclaimers - IANAL. I haven't RTFA.

        You also apparently either don't understand what firmware is, or what software is. (Your software doesn't cease to be software if it's burned into non-reprogrammable memory. Not all software is firmware, but all firmware is software. It's just software recorded on non-erasable chip media. Heck, often these days it's erasable too. Not as easily as when it's saved on disk, but still... software doesn't cease being software merely because you change the media you save it on.)

        • Actually, my wifi card's firmware is loaded from my HD by my driver, on every boot. So different firmware could be loaded with a simple reboot.

          (Note: I'm agreeing with you)

    • by IBBoard (1128019)

      That imaginary patent was about password protection in case anyone missed it...

      And, as the title says, your patent is badly worded (in a good way for a company) since it also probably covers other methods of ID/verification (central logon via something Active Directory-esque, biometrics, etc)!

      • by Rennt (582550)
        "Active Directory-esque"? Is that what the kids are calling LDAP these days?
        • by IBBoard (1128019)

          *shrugs* Dunno, never worked with LDAP. I just know that the last company I worked at used Active Directory and assumed there would be many similar implementations.

    • Originally to be granted a patent in the US a working model had to be submitted to the patent office, so no a concept wasn't patentable. Only specific implementations were.

      Falcon

  • I'm so used to loading slashdot and reading bad news. It's a breath of fresh air to read something like this. Good job everyone from New Zealand.

    Hope some of that common sense washes over to Aussie shores

    • by gnupun (752725)

      I'm so used to loading slashdot and reading bad news. It's a breath of fresh air to read something like this. Good job everyone from New Zealand.

      It is bad news. You've just been brainwashed by the thousands of stories in the media about how patents are bad that bad news looks good to you.

      Patents allow inventors to earn a living. How is making money by creating valuable things bad?

      • by VJ42 (860241)

        Patents allow inventors to earn a living. How is making money by creating valuable things bad?

        Patents in general are a good idea, however Software is already copyrightable; there's no need for it to be patentable as well. If I can code your idea better than you, then your patent is stifling innovation, not promoting it.

      • by Rennt (582550)

        It is you who have been brainwashed. The intent of patents was NOT to allow inventors to earn a living, but to encourage innovation.

        Can you give me a single example of a software patent where this has been the case?

  • I've never really followed the arguments behind why everyone hates software patents. I'm not trolling here, please help me understand.

    As I understand it, the idea behind a patent is to encourage an inventor to invest resources in R&D and then to share their new techniology with society, in return for a time-limited monopoly on exploiting that new technology. This is arguably a bit broken at the moment -- largely because patents seem to be overly broad and to last too long -- but the basic idea seems
    • Re: (Score:3, Informative)

      by Anonymous Coward

      Because an algorithm/piece of software is essentially just a mathematical formula. And formulae are not patentable.

    • I complete agree in preserving the current system ... which in my neighbourhood means software is unpatentable.

      Once patents stop being absolute monopolies and lasting 20 years we can start talking about extending it to algorithms,

    • Re: (Score:2, Interesting)

      Patents were not intended to provide protection to investors. The patent system was initially devised to spread scientific knowledge, allowing interested parties access to the technical information behind new innovations. Such a shame that they're main use now is to stifle the very thing they were intended to promote..!
    • Re:Why Not? (Score:5, Interesting)

      by Anonymous Coward on Wednesday March 31, 2010 @06:29AM (#31685116)

      Because, some poor sucker programmer, living in his mom's basement, could come up with the same idea tomorrow, and find a way to make it work so much better.But the poor sod, who has no idea that the base for his work has a patent on it, will have his ass kicked for his hard work.

      Patents STOP progress, and are rewarding the WRONG people.. They should be kept out of the incredibly fast paced world of computer software.

      If you can't capitalize on your idea fast enough, tough freaking biscuits..

      Copyright on the other hand is a useful protective tool. It stops people stealing your work byte for byte, note for note, word for word... But even that has been abused by insane time limits.

      I am a programmer, and what I'd give to have free reign over my creative process... what I could accomplish without having to worry about the bullshit associated with software patents in the Divided States of Assholica. Seriously, please someone nuke those jerks, starting with their patent offices..

      • Because, some poor sucker programmer, living in his mom's basement, could come up with the same idea tomorrow, and find a way to make it work so much better.

        Better enforcement of the non-obviousness requirement should help this situation. Just like a machine that an average car mechanic could invent shouldn't be patentable, software that an average programmer could come up with shouldn't be patentable, regardless of how one feels about software patents in general.

    • Re:Why Not? (Score:4, Interesting)

      by Anonymous Coward on Wednesday March 31, 2010 @06:31AM (#31685130)

      Because it's far too easy to accidentally create a program that infringes on a patent, most software are made up of basic building blocks that together make a unique product, so if anything should be patentable it should be the building blocks, and only the ones that are not trivial, but who gets to decide this? Which means that we end up in court, which costs a lot of money and opens up for trolls.

      Copyright (a short, say 2-5 years depending on product) and trademark should be enough to discourage competition, if competition can make a program just like yours without copying you and still sell it at a lower cost then you are doing something wrong or your product just wasn't unique enough.

    • Re: (Score:3, Insightful)

      Software (meaning the code) is copyrightable and should not be patentable.

      Let me give you an oversimplified example:
      * Take 100 programmers from this website (rookies, dinosaurs and everything in between)
      * Assign them all the exact same task: write software to solve a specific business problem
      * Require them all to work in isolation so there can be no sharing of ideas or solutions
      * On your marks, get ready, go!

      Chances are that most (if not all) will come up with a solution that addresses the specifi
    • by bunratty (545641)
      I think the real argument is that many patents for obvious algorithms have been granted. Even the simple GIF format, which wasn't particularly clever at all, got a patent. Open source advocates are against these kinds of patents because they can't distribute software freely if their software must use the patents, because there's no obvious way to pay royalties on the patents. I completely agree that these kinds of patents should be stopped. I disagree that the best solution is to abolish all patents on any
      • by jcupitt65 (68879)

        Nitpick: the GIF patent wasn't on the format, but on LZW compression:

        http://en.wikipedia.org/wiki/Lempel%E2%80%93Ziv%E2%80%93Welch [wikipedia.org]

        LZW was used in TIFF as well, for a while. When Unisys started moaning everyone switched to Deflate (zip) compression instead, which actually works better.

        http://en.wikipedia.org/wiki/DEFLATE [wikipedia.org]

        So in this case at least patents did encourage innovation, not because the holders had divulged their secrets (it was all published anyway), but by simply stopping everyone from usi

      • Re: (Score:2, Interesting)

        by osu-neko (2604)

        Even the simple GIF format, which wasn't particularly clever at all, got a patent.

        No. Terry Welch's improvement on Abraham Lempel and Jacob Ziv's LZ78 algorithm was patented, making the LZW algorithm used for compressing the data in a GIF file a patented process. The GIF file format was never patented (I don't think that's even possible, but IANAL).

        • by Rennt (582550)

          Terry Welch's improvement on Abraham Lempel and Jacob Ziv's LZ78 algorithm was patented.

          This is what really pisses me off. Unless Welch invented Comp Sci, Algebra, AC/DC transmission, Language, and the fucking Wheel, what right does he have to claim that he "invented" the refinement of solution to a particular problem that only exists because of the existence of these things?

    • Re:Why Not? (Score:5, Insightful)

      by Drishmung (458368) on Wednesday March 31, 2010 @06:41AM (#31685196)

      I've never really followed the arguments behind why everyone hates software patents. I'm not trolling here, please help me understand. As I understand it, the idea behind a patent is to encourage an inventor to invest resources in R&D and then to share their new techniology with society, in return for a time-limited monopoly on exploiting that new technology. This is arguably a bit broken at the moment -- largely because patents seem to be overly broad and to last too long -- but the basic idea seems sound.

      See http://redmonk.com/sogrady/2010/03/19/software-patents/ [redmonk.com]

      The software patent system may be in need of repair, but is it really worth throwing the baby out with the bathwater?

      It's too broken, too fundamentally broken, to fix.

    • Re: (Score:3, Insightful)

      by osu-neko (2604)
      Patenting an algorithm is not really like patenting an invention. It's more like patenting a mathematical law or a scientific discovery. If someone comes up with a new way to factor large numbers, they should get a Nobel Prize, not a market monopoly and a private island (unless you can buy a private island for cost of your Nobel Prize award).
    • Re:Why Not? (Score:4, Interesting)

      by bit01 (644603) on Wednesday March 31, 2010 @07:40AM (#31685576)

      If I invent a new physical device -- an array of levers and cogs to build something, or a new chemical process to manufacture something -- I can patent it.

      I start a new hardware store in a growing town. It's a physical construction that nobody has done in that town before. Why can't I patent that idea and stop other people starting a competing hardware store when they see it's a success? Think carefully about your answer.

      Personally, I am thoroughly sick of people who automatically assume that patents, a massive government interference in citizens minding their own business, will encourage innovation in every area of human endeavour when it's quite clear they don't. If they're going to argue for this government interference then they should at least have some scientific evidence that it is a net positive in any particular area. Not the usual childish handwaving about how an inventor won't invent without patents (history shows this is nonsense) and that patents have no harmful effect on society and the free exchange of ideas (also nonsense).

      Conversely, there do seem to be advatages to keeping software patents.

      A patent stops billions of people from using an idea that's probably going to be independently re-invented many times so that one (1) person can have additional incentive to invent something. Explain to me why this is a net positive? Particularly for software industry where the entry cost is so low? Keep in mind I'm well aware of patent proponents usual handwaving excuses.

      Your example is just sad. The vast majority of inventors will never get that break and in addition they'll be held back by the patent portfolios of large companies. Patents are just a tool, large companies have more of them and patents in no way change the balance of power between corporations and individuals.

      The software patent system may be in need of repair, but is it really worth throwing the baby out with the bathwater?

      There is no baby. Your automatic assumption there must be without evidence is telling.

      In addition to the above the patent system is based on very shaky intellectual foundations. They can't even objectively decide whether two shades of the color orange are the same or different, let alone whether two ideas are the same or different, a far more complex question and at the heart of deciding whether something is new.

      ---

      Every new patent is a new law; another opportunity for a lawyer to make money at the expense of the wider community.

      • I start a new hardware store in a growing town. It's a physical construction that nobody has done in that town before. Why can't I patent that idea and stop other people starting a competing hardware store when they see it's a success?

        If you invent some new construction material or method that has some improvement over what already exists and that an average architect or engineer would never come up with, then sure, I'd be fine with you getting a patent for it. If you're talking about a patent on the concept of "a store that sells building tools and materials", then the fact that commerce has existed for a few thousand years probably qualifies as prior art.

        Sorry, but this one would be horrible even for BadAnalogyGuy.

    • by codegen (103601)

      The major problem (as I see it) is the doctorine of sufficient change can't apply to software. In the case of your physical device (an array of levers and cogs), I can potentially come up with an alternate means of doing the same thing that is not covered by the patent. For example, when James Watt was improving the Steam Engine, the crank was patented by James Pickard, so he came up with planetary gears. Both were means of converting linear back and forth motion to rotary motion. It is a fundamental princi

    • I've never really followed the arguments behind why everyone hates software patents.

      One measure of ethics, is what would happen if everyone did it?

      If all software was patented, there would BE no WWW. You couldn't just say there would instead be a "Microsoft Web" and an "Apple Web" and a "Linux Web" that couldn't all talk to each other because it would require violating software patents to do so, because each of them would be a "web" and someone would have that patented as well. At best, you'd end up wi

  • I've been curious about the degree to which software patents help or hinder software / computer science innovation. (My money is on 'hinder'.)

    However, some people measure innovation via the number of patents issued. NZ's bill might make their developers / computer scientists more productive, while ironically making it harder to convince people of that fact.

    • by bunratty (545641)
      I would say that software patents currently hinder innovation more than they promote it. But that shouldn't be an argument for abolishing software patents any more than Ralph Nader's campaign against unsafe cars was an argument for abolishing cars. Just as we made cars safer, couldn't we fix the patent system so it doesn't hinder innovation?
    • by AHuxley (892839)
      If your Apple, Adobe, MS or any of the big hardware/software players - help/hinder/slow software / computer science "innovation" can all be very helpful.
      Say Adobe comes out with the next new 'font' thing and Apple and MS dont want to pay?
      Say MS does not want to pay for some fancy digital optical storage format on its loss leader game units.
      Say MS has a codec that ships with every fancy digital optical storage format?
      Software patents are wonderful legal tools to tap into generational revenue streams or l
  • Beauregard (Score:5, Interesting)

    by Dachannien (617929) on Wednesday March 31, 2010 @06:26AM (#31685096)

    In the US, software isn't patentable directly, either. If you claim "a program which causes a processor to perform the steps of...", then you get yourself a rejection under 35 USC 101, because a program isn't a process, machine, article of manufacture, or composition of matter.

    One way that lawyers get around this is by claiming "a computer-readable storage medium storing a program which, when executed, causes a processor to perform the steps of...." A computer-readable storage medium (e.g., a hard drive) is generally considered to be an article of manufacture. This almost got tested in court several years ago, in In re Beauregard, but the USPTO decided to withdraw its rejection and issue the patent before the court got a chance to weigh in on it, and nobody has brought up the topic in litigation since then.

    • Additionally, it will likely be getting harder (if even still possible at all) to patent software at all once SCOTUS rules on Bilski (expected in June 2010).
  • The 2000-2010 "Intellectual Property" boom is about to go the way of the "Subprime" Mortgage, Dot-Com vapor startup, Junk bond and Dutch Tulip futures. The Patent Troll Business Model is inherently flawed, and just like the aforementioned others, add nothing to a nations REAL economy.

    Let the lawsuit mushroom clouds rise over the remains of USA's Tech industries [slashdot.org] the rest of the world will go their own free way.

  • Don't cheer yet (Score:4, Interesting)

    by erroneus (253617) on Wednesday March 31, 2010 @06:55AM (#31685290) Homepage

    This is a DRAFT of a bill. It's not even a bill yet. And while some are speculating that this is intended to get more public attention, I think it may be intended to get more private (funds) attention. With all the high pressure lobbying [read "involves a lot of money"] I imagine NZ's government may be feeling they aren't getting their share of attention from those in support of software patentability. The inclusion of this may only be there to rattle some cages.

    • by Korgan (101803)

      Completely pedantic of me, but relevant. In New Zealand a Bill is always a draft. There is no difference between a "draft bill" and a "bill." Once the Bill passes its 3rd and final reading in the House, it becomes an Act at which point it is law.

      In regards to your comment about "Big Money," New Zealand is very small, but it doesn't really have the same problems with lobbyists that the US or other large nations do. In fact, the majority of lobbyists in New Zealand are Greenies and Climate Change doomsayers t

  • Draft only (Score:3, Insightful)

    by IGnatius T Foobar (4328) on Wednesday March 31, 2010 @07:37AM (#31685548) Homepage Journal
    Draft bill. Not final. Not to worry. An army of lobbyists is already on a flight to NZ to "correct" the situation before it passes.
  • Documentation of this has been ongoing for a few months now:

    http://en.swpat.org/wiki/New_Zealand [swpat.org]

  • As someone deeply involved in the Patents Act process in NZ (I wrote my thesis on it ;-) http://researcharchive.vuw.ac.nz/handle/10063/1027?show=full [vuw.ac.nz] And presented to Parliament on the Act; I can tell you that the Select Committee report is the final stages before the Bill is either passed in Parlimentary Session or thrown out for another full round (considering the current Draft on the Table started in 2002 I doubt that will happen).
  • Hopefully this bill makes it through NZ's legislature reasonably intact. Be very sure that a huge amount of pressure will be brought to bear on legislators in the meantime.

    But... if it finally does pass, Welcome To The Club, NZ!

    South Africa's IP law explicitly states that software is unpatentable. Not that this stops the like of MS trying anyway... This leads to some bizarre circumstances... about 10 years ago I spent several months doing development work in Switzerland for a South African client, all b

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