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New Zealand U-Turns, Will Grant Software Patents 94

Posted by kdawson
from the go-back-you-are-going-wrong-way dept.
ciaran_o_riordan writes "Due to lobbying by a group called NZICT, New Zealand's parliament is now set to let go of its proposal to ban software patents. Patent attorney Steven Lundberg announced the details in a blog entry. This was quickly deleted, but not before it got stored in Google's cache. Here we can read that 'Hon Simon Power has asked MED [Ministry of Economic Development] to work with the Parliamentary Counsel's Office to redraft the section along the lines of the European Patent Convention.' Which is exactly the opposite of March's announcement that 'computer software should be excluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques.' The background to this case gives every reason to be hopeful, if computer users in New Zealand get active again."
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New Zealand U-Turns, Will Grant Software Patents

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  • This will have as much effect as Switzerland banning whaling.

    • And the world-wide actions against whaling ARE having an effect. Japan is "fighting" it tooth and nail but if you look closer it is more a case of saving face while slowly giving in then outright resistance. The number of whales is on the increase while whaling might soon be going down even further.

      So your point is completly and utterly wrong.

      Remember that even the longest journey starts with a single step. Your kind never ever gets anything done ever because you are unable to accept that you need to set

      • Re: (Score:3, Insightful)

        by Hognoxious (631665)

        And the world-wide actions against whaling ARE having an effect.

        Banning is one thing, but enforcement is another. I take it you think the Swiss navy are doing a good job?

  • by ciaran_o_riordan (662132) on Wednesday June 23, 2010 @05:29AM (#32662882) Homepage

    Someone's suggested mailing copies of Patent Absurdity [patentabsurdity.com] to patent policy setters in NZ. They've started building a list here:

    Add as many names as you can think of - and we'll need something to indicate why this person is relevant and address. A name on its own is useful, but if that person is to receive a copy, someone will have to dig up an address.

  • Citation needed? (Score:4, Insightful)

    by Sockatume (732728) on Wednesday June 23, 2010 @05:33AM (#32662892)

    I don't want to sound overly sceptical, but the evidence for this is a blog post that the blog's author has since deleted, right? Would it kill someone to email the blog's author and ask why it was deleted? Could it be that it's inaccurate in some material way? I'm not arguing that the post's deletion is a demonstration of inaccuracy, but it raises an eyebrow.

    • Re:Citation needed? (Score:5, Informative)

      by stevebwriter (1840148) on Wednesday June 23, 2010 @06:13AM (#32663048)
      I have spoken to two spokespeople for the NZ Ministry of Economic Development (MED), who confirm the essence of the meeting (as reported at http://tinyurl.com/25dr6r4 [tinyurl.com] Not yet printed (as at 10 pm NZ time June 23) is my brief interview with NZICT CEO Brett O'Riley about the meeting. So yes, it definitely happened. MED says there has been no real change; they are only "clarifying" what the Parliamentary Select Committee meant to say all along. I find it very hard to read any such significance into their report (PDF link at http://tinyurl.com/37wyoyg [tinyurl.com]). Steve Bell Computerworld NZ
      • by Sockatume (732728)

        Awesome, thanks.

      • by AK Marc (707885)
        I assume from that, you are in NZ. I'm in NZ and I don't know the best way to make my opinion on this issue known. Should I just contact my MP, or is this in a committee or something that I should be contacting other people about?
      • Thanks heaps for that information. I am involved with a software company in NZ so this affects me directly.

    • by IanBal (1804634)
      Let me guess - He let the cat out of the bag when he shouldn't have and tried to hide his tracks by deleting the entry.
  • by BlakJak-ZL1VMF (256320) on Wednesday June 23, 2010 @05:46AM (#32662952) Homepage

    One of the key issues with NZICT is that they claim to represent the New Zealand IT community, and yet in reality their membership is governed by commercial size - and of course, all the large outfits with precious few exceptions are the local chapters of the multinational giants (Microsoft, HP, et al).

    So what this situation illustrates is

    a) The Select Committee process is a joke (as it appears if you have sufficient clout, you can ignore it and go straight to the minister)
    and
    b) NZICT are shooting a good portion of New Zealand's home grown ICT industry in the foot, and pretending that it's for the good of the industry at large.

    By and large the Patent world provides leverage for large firms with large patent portfolios and the budget to play in the legal marketplace. It hurts smaller firms who don't have the capital for prolonged legal battles. The arguments 'for' Patents are not entirely without merit (imho) but the arguments 'against' outweigh them by a mile - unless there's profit to be lost.

    • by jago25_98 (566531)

      Perhaps the smaller members of the group need to be reminded of how the larger members of the group benefit more than them, to the possibility of putting them out of business;

      -`Patents artificially sque the economies of scale. The eventual conclusion is removal of all but the top company.`

    • Simon Phipps, former chief open source executive of Sun Microsystems, has just asked IBM's open source VP Bob Sutor via Twitter [twitter.com] (with a reference to this very slashdot story) to clarify IBM's role in lobbying for software patents in New Zealand. It will be interesting to see Bob Sutor's response, should there ever be one.

      When it comes to patents, IBM stands for International Bullying Machines [blogspot.com]...

    • > One of the key issues with NZICT is that they claim to represent the New Zealand IT community, and yet in reality their membership is governed by commercial size

      They make no such claim:

      "Formed in December 2008 the NZICT Group is an industry association made up of over 80 leading New Zealand ICT companies" - http://ict.org.nz/ [ict.org.nz]

      By definition, an industry association is governed by commercial size.

      • Pussyfoot around the wording all you like; "New Zealand ICT" is pretty descriptive all on its own. By their very name, they claim to be 'representative' when they're most clearly not.

        • What idiocy. If I claim to be representative of men, you'd complain that I'm not including the views of women.

  • Once again people who have never even read a software patten comment
    on the patten process, and presume to know everything.

    A "software" patent usually does not mention the word "software"
    anywhere within it. There is no way to tell if the patent is
    purely about software or not - at least not from a legal perspective.

    What makes a patent admissible is if it has particular application
    and contains a novel inventive step.

    So even the most outright ban on all software within patents would
    change little really. Moreove

    • by KDR_11k (778916)

      What makes a patent admissible is if it has particular application
      and contains a novel inventive step.

      AND contains a clearly defined implementation. That part is important or you get idea patents.

      • by AbbeyRoad (198852)

        yes, this is aleady part the patent process.
        it is called the "preferred embodiment".

        -paul

    • by pieterh (196118) on Wednesday June 23, 2010 @06:14AM (#32663056) Homepage

      The reason software patents are described as funny kinds of machines is to get around the disgust with which most people feel when maths and logic are turned into private possessions by force of lobbying.

      However, no matter how bizarre the patent language, and no matter whether or not the patent is granted or not, the final decision lies with a judge who determines whether or not the patent applies to a product being imported or sold. At this stage it is extremely simple to distinguish what is "software" from what is not. If you can download it and run it, it's software. So take for example a media player accused of infringing MP3 patents. If I can download and run a new codec, that is software.

      Now, who decides whether or not software is patentable? Clearly this clique of US firms trying to control the NZ market are cheating by referring to "Europe", since the same clique hacked the EPC over so many years, fighting EU civil society for years as it then tried to make that hack into EU-wide law.

      What they are now doing in Europe is to try to create a separate non-EU patent court that will decide on what is patentable, and what is not. Where judges are chosen by the patent industry. Which works for its clients, i.e. patent holders. I.e. Big pharma, big software, and big telco will be, indirectly but still in a controlled fashion, choosing the judges, and deciding on the outcome of patent arguments.

      It seems relatively cheap to buy lawmakers.

      The real issue here is simply democracy, and who makes the laws, and how.

      • by AbbeyRoad (198852)

        > maths and logic are turned into private possessions

        well, when has this actually happened? You presume this
        effect is in play because everyone else on slashdot is
        alway ranting about it, but do you have actual examples?

        Otherwise you are like a hairdresser complaining about a
        conspiracy to stop scientists from producing perpetual
        motion.

        > At this stage it is extremely simple to distinguish what is "software

        Your logic is amiss here. Whether or not a patent has been
        violated has nothing to do with the form

        • by AK Marc (707885)
          Well, we can always go back to "one click" being a patent for "put it on my tab - on a computer." Anything that's obvious and has been done for thousands of years with "on a computer" added on the end is a silly patenting of a logic with millions of acts of prior art.

          The IP system in the US was set up with three (and a half) categories. Trademarks are identified ways products are marketed. They are perpetual, but must be actively defended or are lost. They exist to prevent fraud by deliberate confusion
          • by AbbeyRoad (198852)

            Thanks for this long essay explaining what should be obvious to anyone
            who engages in this discussion. You needn't have waisted your time.

            You think because you have read about the different types of IP that
            you are now an expert. Have you ever APPLIED for a patent or trademark
            yourself? No, you have not.

            Have you ever looked through the patent or trademark archives and actually
            read real patents IN FULL to understand how patent law works in practice?

            Also no.

            You say "people" are doing this and that. Says who? Say

            • by AK Marc (707885)
              If it's so obvious, why is US law (and/or courts) not treating it like I described?
              • by AbbeyRoad (198852)

                You don't know that they aren't.

                Look, just like there are incompetant programmers that write bad
                code there are incompetant lawyers that badly prosecute or defend
                a case, and there are judges who don't get things right either.

                You don't know what happened in these individual cases until
                you have studied the court records in detail. Furtunately
                judgments are usually available online so you can read these
                in full. Why don't you select an example of your choosing
                and study it?

                Anti-patent news media will select the mo

                • by AK Marc (707885)
                  You don't know that they aren't.

                  But what I said is internally inconsistent. The law doesn't allow for it. So if the courts are treating it as I say, then how do they reconcile their findings with the fact that the law doesn't allow for the patenting or copyright of "discovered" items when such items have been both copyrighted and patented.

                  This has now become a forum of people who have collectively agreed to NOT understand the patent system and support each other in a voice of a non-cause. It's a total
      • "the disgust with which most people feel when maths and logic are turned into private possessions" -- sort of like the disgust when math and logic are turned into an ingenious machine, or chemistry is turned into an ingenious process? After all, chemistry is how matter works, how could you patent that? The idea of a 'software patent' is a strawman. Technologies are patented, they are ways of doing things. Sometimes they can be implemented in software, for sure. Codecs patent signal processing and data
        • by AbbeyRoad (198852)

          exactly right

        • by AK Marc (707885)
          sort of like the disgust when math and logic are turned into an ingenious machine, or chemistry is turned into an ingenious process?

          The process is patentable. The machine is patentable. But the logic behind it is not. They want to patent the initial though, the logic, and the result. And that's not what patents are for.
          • by AbbeyRoad (198852)

            "They"??

            how do you know this?

            In actual fact a patent has to apply to a specific utility to be
            accepted. Please go read some real patents on google so that you
            know what you are talking about.

            -paul

    • I live in the USA, where the constitution explicitly states that mathematics cannot be patented. Yet somehow, patents are granted on algorithms.
      • by AbbeyRoad (198852)

        You live in the USA, where the constitution actually does NOT mention patents at all.

        But in patent law in general, there is no real distinction beteen algorithms
        and mathematics. Patent law in fact does NOT restrict someone from patenting
        pure mathematics. This is just what people on slashdot say who do not
        understand patent law and have never read a patent in their lives.

        What patent law actually says is that an invention that does not have a specific
        PHYSICAL utility cannot be patented. This prevents someone f

    • What makes a patent admissible is if it has particular application and contains a novel inventive step.

      Yet many patents are admitted where there is prior art (thus the inventive step is not 'novel') and where the step and application are painfully obvious to anyone with a degree of understanding in the relevant field. The patent system needs to be overhauled, currently it is not serving the purpose which it was created for.

      • by AbbeyRoad (198852)

        > Yet many patents are admitted where there is prior art

        oh? give me an example of one?

        You say this just because OTHER PEOPLE are always citing examples -
        Yet if you actually read through software patents you will find
        each and every patent is legitimate with very few exceptions.

        Now, it is not possible for a patent examiner to refuse to
        admit a patent that has been correctly prosecuted. This means
        that the applicant has justified the novelty, inventiveness,
        and utility of the invention.

        The fact that some inven

        • Any time you write code you are violating patents. To be worthy of a law suite requires a certain fair context.

          -paul

          I find it hard to believe you can say something like this and argue that the patent system is fine.

          • by AbbeyRoad (198852)

            Because you don't understand it, you find it threatening.

            There are many systems in our society that are not perfect, but for
            which there is no better solution.

            If you would like to propose BETTER legislation than we currently have,
            then please do. But then you must ACTUALLY PROVIDE VIABLE LEGAL WORDING.

            Don't complain and then say that SOMEONE ELSE must make the fixes using
            a magic wand.

            I think what you will find when you investigate this thoroughly, is that
            the sort of changes that the "free software" community

            • This would be where our viewpoints differ then. I don't have the perfect solution at hand, I'm sure that a team comprised of experts in different industry areas (Taken from multiple companies that are not in cooperation) working with a lawyer or two could come up with a better system.

              Your outlook seems to be this is as good as we have now so it's better than nothing. My outlook is when something has as large of an effect as the patent system do it right or we're better off without it. While I don't agr

              • by AbbeyRoad (198852)

                > I'm sure that a team comprised of [...]

                well this has already happened, and is continuing to happen.

  • by Aceticon (140883) on Wednesday June 23, 2010 @06:15AM (#32663058)

    Software patents hinder progress because they give existing slow-moving, dinossaur-like large companies the tools to kill small innovative IT companies before they outcompete them and turn into the large companies of the future.

    In Software there are no basic concepts which are trully new or innovative and require patent protection - pretty much any software concept can and will be independently reinvented again and again because all professionals in the field will come up with similar solutions when trying to solve similar problems.

    All software which is sufficiently complex for being non-obvious is already protected by copyright due to it's sheer size - no patents needed.

    Any country that adopts Software Patents creates the conditions for the stagnation of their own Software industry - Software Patents are used by large companies to kill, while they're still young, any and all companies which might've one day turn out into something like Google.

    For a country like New Zeeland, which has no large software companies, enacting Software Patents will just kill local software companies for the benefit of larger foreign ones. This is pretty much the pinacle of stupidity.

    As an European I tell you New-Zeelanders: don't follow-up on the footsteps of the EU and the US - in 20 years time all new and innovative ideas will be coming up in countries where, thanks to weaker IP enforcement, the cauldron of innovation and unfettered competition continues to bubble at full strength, while places like the US and the EU will see their economies continuing stagnate and decay because the few new ideas they still manage to produce are being killed in the cradle.

  • by w0mprat (1317953) on Wednesday June 23, 2010 @06:18AM (#32663082)
    Now preserved here in Slashdot comments for when it evaporates from cache:

    New Zealand Brings Software Patents back From Brink of Extinction
    New Zealand looks like its reversing course on software patent protection. On June 9, there was a meeting between representatives of NZ Ministry of Economic Development (MED) and representatives of NZICT Group. It appears that New Zealand is likely to ultimately adopt an approach to software patents that is consistent with the EPO’s position. My thanks to Jim Hallenbeck (Schwegman) and Paik Saber (IBM) for relaying this information.

    Here is the summary of the meeting provided by Brett O’Riley CEO of NZICT:

    Our representative delegation met with MED in Wellington yesterday. This was to discuss the formal submission we had made to Hon Simon Power last week covering our concerns about the proposed draft legislation.

    The end result of the meeting was extremely encouraging. While section 15 (3A) will not be removed (our ideal outcome), Hon Simon Power has asked MED to work with the Parliamentary Counsel’s Office to redraft the section along the lines of the European Patent Convention. He has informed the Commerce Select Committee that Crown Law will be undertaking some redrafting before the bill gets to its Second Reading.

    While it’s obviously not the end of the journey, it was very pleasing to have a positive indication that the Government recognises there is a need to amend section 15(3A) to make sure it’s consistent with the intent of adopting European practice. While European law does restrict software patents this is positive progress, and the view of our team is that this would be a good outcome for the New Zealand ICT industry.

    In summary, the MED confirmed earlier statements from Select Committee members and MED officials that the intent was to follow European law (even though this is not mentioned in the Commentary to the Patents Bill). The MED acknowledged that amendment is required to achieve this, and that the Minister supports finding a reasonable way forward on this point before proceeding with the Bill.

    The meeting was attended by myself, as well as Peter Wren-Hilton from Pingar, Dougal Watt and Julie Motley from IBM, and Waldo Kuipers from Microsoft. There was an apology from Ed Robinson (Aptimize) though I verbally covered his concerns. From the MED, Rory McLeod (Director – Competition, Trade and Investment Branch) attended, as did Silke Radde and Warren Hassett who are responsible for overall IP policy and the Patents Bill respectively.

    Rory McLeod began with an update on the Patents Bill clause 15(3A).

    He described the decision of the Select Committee as being to move to a “normal patentable situation as in Europe”, that did not allow patenting of software per se.

    Rory then went into some detail (partly in response to questions we had raised) about what the Select Committee intent was:
    The intent had never been to ban software patents outright (and the MED would have serious concerns about that if it were proposed).
    If it is patentable in the EU then it should be patentable in New Zealand.
    Software should be treated like other technology, so should have a technical purpose and be an inventive step to be patentable, as in Europe.
    Not just any software would be patentable, it would need to meet the above test.
    Embedded or not embedded is or was not the distinction that is intended.
    The signal that the Government wants to send is to follow European law and practice.


    The MED also now clearly acknowledge that clause 15(3A) is not adequate to convey this intent. It was great being able to present practical examples of world leading software being developed by Pingar and Aptimize, and hear MED recognise the importance of these companies being able to seek patent protection.

    The MED said they wou

  • by houghi (78078)

    if computer users in New Zealand get active again.

    How ofen do they have to disagree to have them? You often see that if some groups wants to push something, they will retry and retry and get elected away all the time. Then suddenly they win, basically because everybody is tired of playing their silly game.

    Now if you want to reverse it, they say that that can not be done, because it is the law.

    What will happen here is that it might be rejected again and then it just starts all over again.

  • This whole blogging thing needs to be stopped.

  • by Hognoxious (631665) on Wednesday June 23, 2010 @07:36AM (#32663340) Homepage Journal

    if computer users in New Zealand get active again

    They're on holiday. Yes, I know what you're thinking - surely they can't both be away?

  • excuse me you oldtimers, but there is no other culprit here. as long as there is private capital, there will be stronger private capital (than the common citizens' own total) that will be able to use that capital to lobby for their own private interests, and impinge their own will and desire to all of the population. there can be no democracy, where there is such phenomenon.
    • by Phrogman (80473)
      So you are saying that Capitalism is fundamentally incompatible with Democracy? I would have to agree, however the alternatives don't work well either. Shall we say those with the money make the rules, and there is simply no way around it sadly? :(
      • by unity100 (970058)
        yes i have come to that conclusion. in capitalism, there will always be minority groups with much more wealth (therefore power and influence) than the masses.

        alternative is heavy social democracy. in which government, as a tool, controls the country and regulates it heavily. and taxes the wealthy to the extent that they cant amass huge wealth to lobby. works well in sweden, norway, denmark etc.

        but tho, there may be a new alternative - direct democracy. a democracy in which everything is communally own
  • Wrong question (Score:3, Interesting)

    by Theaetetus (590071) <theaetetus,slashdot&gmail,com> on Wednesday June 23, 2010 @10:01AM (#32664484) Homepage Journal

    'computer software should be excluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques.'

    In US Patent Law, and in every PCT country in the world, there are three base questions for whether something can be patented (there are more, too, but these are the important ones):
    1. is the technique already known? In other words, is it already existing?
    2. is the technique obvious? In other words, is it trivial?
    3. does the technique comprise patentable subject matter?

    These are three completely independent questions, and that's what the quote gets wrong... It answers the third question with "all computer software should be excluded from patent protection", but only as a result of the first two questions "because they can be granted for trivial or existing techniques". That's not an issue with software - that's an issue with everything. Patents shouldn't be granted for machines, engines, chemical compounds, or anything else that is either trivial (obvious) or existing (known).

    The point of the third question is, should a technique that is completely unknown to man and not at all obvious still not be patentable, because it's in the field of _____? For example, in the US, we consider laws of nature to be unpatentable, even if they're completely unknown and non-trivial.

    So, when you talk about whether software should be patentable - whether it's merely an "abstract mathematical algorithm" performable by a Turing machine - the question is not whether patents get granted for trivial or existing methods... but whether a non-trivial, new method should still be unpatentable, solely because it's software.

  • Don't Panic Yet (Score:2, Informative)

    by foxylad (950520)

    I'm a Kiwi, made a submission to the select committee, and have just sent an email to Simon Power suggesting he tread carefully.

    Before you all get too het up, I would emphasise that this is New Zealand. We have pretty transparent politics here, even to the level of releasing MP's expense claims (aside: we just had a great little storm in a teacup because one MP booked several porn movies to his hotel bill). Another really healthy thing about our tiny country is how directly you are connected to your represe

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