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Software Now Un-Patentable In New Zealand 221

Posted by CmdrTaco
from the make-up-your-mind-people dept.
A few weeks ago New Zealand Software decided to grant software patents. But now "Despite what appears to be a big-budget lobbying effort by the pro-patent fraternity, Hon Simon Power announced today that he wouldn't be modifying the proposed Patents Bill hence software will be un-patentable once the Bill passes into law. This is significant. As we've previously pointed out software patents aren't black and white, and there are certainly pros and cons. However on balance, we believe they represent a far greater risk to smaller NZ-based software providers than opportunity, and there are many cases where they have significantly stifled innovation. We believe it's near impossible for software to be developed without breaching some of the hundreds of thousands of software patents awarded around the world, hence many software companies in New Zealand, creating outstanding and innovative software, live a constant risk that their entire business will be wound up overnight due to litigious action by a patent holder. This has led to many a 'patent troll' company, primarily in the US. These are non-software companies who exist only to buy up old patents with the sole intention of suing innovative software companies for apparent breach of these patents. The effects of this have been chilling."
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Software Now Un-Patentable In New Zealand

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  • Huzzah! (Score:3, Insightful)

    by spammeister (586331) <.moc.liamtoh. .ta. .ccrfoomsatnaf.> on Thursday July 15, 2010 @10:13AM (#32914068)
    Hopefully this marks the beginning of more like-mindedness thinking in other countries.

    There should be some ramifications to the ACTA kerfuffle, which is always welcome IMO.
    • Re:Huzzah! (Score:5, Insightful)

      by Bigjeff5 (1143585) on Thursday July 15, 2010 @10:19AM (#32914134)

      Meanwhile in the US, the way has been paved for business method patents. Yay progress!

      While I definitely think there are legitimate software patents, the decision to have none at all is probably better than the current insanity in the US.

      Patents should be for truly innovative things, and no, adding "on a computer" to something that has already been invented is not innovative. Apparently our patent clerks cannot tell the difference when it comes to software.

      • Re:Huzzah! (Score:4, Informative)

        by Xtifr (1323) on Thursday July 15, 2010 @12:01PM (#32915488) Homepage

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

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

        • Re: (Score:3, Interesting)

          by Bigjeff5 (1143585)

          Not really, the SC simply upheld the specific rejection of Bilski, but struck down the broader machine-test portion, which was the key in eliminating business method patents.

          In other words, Bilski originally said business methods were un-patentable, because all patents must this test. The SC said that the Bilski test isn't the only test.

          Thus, business method patents are still potentially valid, even though the specific patent in Bilski is not.

          If that's not paving the way for business method patents, I don't

          • Re: (Score:3, Insightful)

            by Xtifr (1323)

            Bilski as a whole greatly improved matters in the US. It's true that the SC didn't go quite as far as the lower court, but the lower court decision wasn't binding on other districts, while the SC decision is. Even East Texas. Anyway, the net result was still a major improvement. And the test (machine-or-transformation) wasn't rejected; it was simply stated to be not-necessarily-sufficient by itself. But the bar for any candidate patent that fails the machine-or-transformation test is much, much higher t

      • Re:Huzzah! (Score:5, Insightful)

        by cashdot (954651) on Thursday July 15, 2010 @12:09PM (#32915614)

        Apparently our patent clerks cannot tell the difference when it comes to software

        I was working as such a patent clerk (with focus on software) in Europe.

        While it is easy to accept every software patent application (as in US) or reject all of them (as apparently now in New Zealand), it is very hard to find objective criteria to separate obvious things from truly innovative stuff.

        The basic problem is, that in Software, there are usually very little unforeseen obstacles to overcome, when a concept is turned into actual code.

        Lets say, state of the art is, that software A can do X, and software B can do Y.

        Now somebody invents a software C that can do both, X and Y. Is this innovative? Usually not.

        If we apply this example to the physical world, the situation is entirely different. A submarine can dive, and an aircraft can fly. Inventing a "machine" that can do both, would require a lot of innovation.

        Now, a patentable idea has to be technically feasible. In the case of software, there is not much justification required, as every expert in the field knows, that it is in principle possible to combine X and Y. On the other hand, in the physical world, it requires much more than just an "idea" of a flying submarine to have a patentable innovation.

        Therefore, it is very easy to apply for a patent for a software, that is unknown in the state of the art, while technically and economically feasible. In the physical world, this is much harder to achieve.

        The problem is not, that the patent offices only have incompetent examiners. Rather, the definition of "patentable innovation" is not suitable for software.

        • Re: (Score:2, Interesting)

          by Bigjeff5 (1143585)

          I disagree with most of your post. I'll sum up how the preliminary software patent test should work (only to show what is definitely not patentable) here:

          If you can take an idea for a piece of software to any software engineer and say "Here, program this for me" and they can program it for you, it isn't an innovative enough idea for a patent. If you take it to an engineer and they say "How the hell am I supposed to do that?" then you have something special. After you get the patent, that same engineer sh

        • by bit9 (1702770)

          The problem is not, that the patent offices only have incompetent examiners. Rather, the definition of "patentable innovation" is not suitable for software.

          Nonsense. The parent was specifically referring to the current state of software patents in the U.S., and patents such as Amazon's 1-click patent have everything to do with incompetent examiners, and nothing to do with the difficulty of finding a suitable definition of patentability. The 1-click patent may just be the most egregious and/or the most often

        • Re: (Score:3, Interesting)

          by steelfood (895457)

          That's because software is design. It's code that tells the machine what to do, not the actual machine doing the job.

          Software's covered by copyrights. You can't patent it just like you can't patent a story or a color scheme.

      • Re: (Score:3, Interesting)

        by dov_0 (1438253)
        A patent is there to encourage innovation by making it possible for inventors to profit, yes? Well why don't patents become invalid after a certain number of years if no product is released? Say, 2 years for software and 5 or 10 years for technology at the discretion of the patent office.
      • "Meanwhile in the US, the way has been paved for business method patents."

        You should take a look on the case on Blinsk, recently decided by your supreme court. Some time is needed to see how far that will affect software patents, but the tide has clearly changed.

        • Re: (Score:3, Interesting)

          You should take a closer look at it. The general consensus is that Bilski was as close to a crushing defeat for the anti-software-patent crowd as was possible to get.
      • by trout007 (975317)
        Patents are a legal temporary monopoly that are to be used to help technical progress. Can you imagine how long in the 1800's it took to get the word out on a product? It almost made sense to have a 20 year patent. But these days I don't think it's needed anymore. It takes a second to roll out a product nationally. Plus the things that get patents are mostly marginal improvements that won't be useful for 20 years. How about this. The US patent system only gets to grant 100 patents a year for the really grea
  • by Anonymous Coward on Thursday July 15, 2010 @10:16AM (#32914100)

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

  • by GilliamOS (1313019) on Thursday July 15, 2010 @10:18AM (#32914116)
    place to live everyday. The took away farm subsidiaries and now they have four times the output. No more patenting ideas that you will never try to build and sell, only to sue some other poor soul who's trying to make his life better. Not to mention the climate of NZ looks quite appealing. Imagine where touch tech would be today if some dipshit in the 80's hadn't locked it up in patents? The touch tech of the movies could already be common place.
    • by blair1q (305137)

      Yeah, but it's full of giant gorillas and lesbian warriors.

      I don't need my ego shoved in a drawer every day like that.

      • by alexo (9335)

        Yeah, but it's full of giant gorillas and lesbian warriors.

        Better than the other way around.

  • by Marcion (876801) on Thursday July 15, 2010 @10:19AM (#32914126) Homepage Journal

    If the New Zealand government manages to get the bill enacted without bowing to pressure from foreign patent trolls, then New Zealand will be a safe habour for genuine software firms wanting to get on with developing software. If the New Zealand Software Industry now booms, hopefully other regulators will take note.

    Historians will look back and see patent trolling as one of those mad schemes of the first decade of the 21st Century, alongside subprime mortgages, leveraged investment vehicles and so on.

    • by Lando (9348)

      Doubt you'll see large companies spring up, since exporting software would still require the software to respect laws in the the countries that the software was sold in.

      That being said, for someone that likes to work on computers and write programs, retiring to somewhere that guarantees that you will not be living in fear of being sued for accidentally publishing something that someone has a patent on would be nice.

      Heck, doesn't matter if you actually did step on someone's patent or not. As a retiree I don

      • by Marcion (876801) on Thursday July 15, 2010 @11:32AM (#32915092) Homepage Journal

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

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

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

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

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

  • QT licence (Score:4, Insightful)

    by gbjbaanb (229885) on Thursday July 15, 2010 @10:19AM (#32914132)

    remember the clause in the Q Public Licence that says "if you want to initiate legal procedings, you have to do it in a Norwegian court", well I have an amendment for the other OSS licences :)

    • As far as I understand, generally it is possible for a court to apply foreign laws, particular in these quasi-contractual licenses. In more technical terms, the choice of law and where jurisdiction lies are different issues. http://en.wikipedia.org/wiki/Conflict_of_laws [wikipedia.org]

      IANAL.

      • by imamac (1083405)
        Some courts seem to think that. They are wrong. Courts are there for our laws, not anyone else's. I forget which SCJ mentioned looking to other countries to decide if something was constitutional or not, but it happened. That's just sad.
  • One important caveat (Score:5, Informative)

    by Artem Tashkinov (764309) on Thursday July 15, 2010 @10:19AM (#32914138)
    Some news sources over the Internet state that according to the proposed law inventions for software destined for embedded systems will remain patentable, which IMO doesn't sound/look good since it opens a loophole for dirty manoeuvres.
  • by kyrio (1091003) <slashdot AT lurkmore DOT com> on Thursday July 15, 2010 @10:20AM (#32914146) Homepage

    It won't matter if the USA doesn't do the same if every other country follows this change.

  • NZ is becoming a new magnet for film making and now software houses have a huge incentive to move there. THIS is how you build an economy.

  • Immigration (Score:4, Interesting)

    by Lando (9348) <lando2+slash.gmail@com> on Thursday July 15, 2010 @10:31AM (#32914298) Homepage Journal

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

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

    • Re:Immigration (Score:4, Informative)

      by SiaFhir (686401) on Thursday July 15, 2010 @11:07AM (#32914806)
      Everything you need to know about migrating to NZ is here [immigration.govt.nz].
    • "They aren't trying to filter the internet or anything are they?"

      Sadly yes. Its not a strict as Australia but it is there. The ISP has to volunteer to join the scheme. Needless to say, I was on the phone to ask. And I actually enjoy getting sales calls from the big ISP's. "No, I will not join your service, as you have subscribed to the Internet Filter mandate".

      Fortunately the small ISPs regularly score best in consumer surveys for service and performance..
  • it is huge, because this Simon Power person apparently knows everything and understands everything as it is. not one bit more, not one bit less. he basically precisely identified the issue in most bare and sharpest form. this was unprecedented, among politicians. hopefully more will follow.
  • by ciaran_o_riordan (662132) on Thursday July 15, 2010 @10:44AM (#32914468) Homepage

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

    • Re: (Score:3, Informative)

      If I didn't forget to write the link text, the first link whould have been:

      That's a general page of background for the situation, more important than the other three links :-)

    • by shermo (1284310)

      Hence it's important to thank Mr Powers

  • No software patents, beautiful country, and I've heard the scuba diving and beer are good. Time to move....
  • by DdJ (10790)

    So companies in NZ will be producing algorithms that in the rest of the world would be patentable, but will just let anyone use them for any purpose with no regard or no compensation?

    It may become a haven for patent trollops!

  • Did we actually win one?
  • One should be able to protect yourself if you create something new. True, the entire patent sturcture has been abused, but there needs to be something. ( and i don't think copyright is it either )

    • by ledow (319597)

      If you *create* something you, you can.

      The problem is the definition - at the moment people are patenting things as basic as how to sort a list of windows and stupid things like that. They are not "inventions", and it's hard to "invent" anything on a computer that is purely software. Machines that rely on computers to do a certain task are still patentable worldwide, but just saying "I take these bits and do this to them" isn't an invention and isn't patentable in New Zealand now. It won't be too long (o

  • Let's Harmonize (Score:3, Insightful)

    by eddy (18759) on Thursday July 15, 2010 @11:38AM (#32915176) Homepage Journal

    If this happens for real, the rest of the world should harmonize [google.com] to NZ standards. Right politicians and lawyers, harmonization is important, isn't it?

    • If this happens for real, the rest of the world should harmonize [google.com] to NZ standards. Right politicians and lawyers, harmonization is important, isn't it?

      It is harmonized... New Zealand is following both European and US patent law, and allowing software embedded in a device to be patentable. "Embedded in a device" sounds a lot like the "tied to a specific machine" language from Bilski, huh?

  • by idontgno (624372) on Thursday July 15, 2010 @11:46AM (#32915278) Journal

    but not at all surprised that the argument against software patents in NZ didn't came down to "they're bad, often abused, and stifle competition" but instead to "they're bad for New Zealand".

    It's a principled stand, where the principle is "what's good for us is good."

    Nations, like people, are guided by "enlightened self-interest", I guess. (As a citizen of the USA, I'll admit to being quite familiar with the concept.)

    • by Hairy1 (180056)

      As one of the primary authors of the submissions to the NZ Government proposing an exclusion for software patents I had to use multiple arguments. Those arguments included that they are abused by multinational companies, that the stifle competition, and that we should not change our law to suit the interests of these mutltinationals.

      You will note that the US is currently trying to push US style intellectual property legislation onto other countries because it is in the interest of the US multinationals. Not

  • Too bad — I was looking forward to re Bilskiwi.
  • The global effect of a single country rejecting software patents is much less than, say, the effect of allowing decryption and reverse engineering tools a la DVDCSS.

    New Zealand authors and users will be safe from lawsuits, but users who download and use code in countries where the patents apply remain vulnerable to lawsuits, despite not being the authors.

  • "Despite what appears to be a big-budget lobbying effort by the pro-patent fraternity, Hon Simon Power announced today that he wouldn't be modifying the proposed Patents Bill hence software will be un-patentable once the Bill passes into law.

    Follow the link in the summary and you get:

    It's official: Software will be unpatentable in NZ

    Despite what appears to be a big-budget lobbying effort by the pro-patent fraternity, Hon Simon Power announced today [beehive.govt.nz] that he wouldn't be modifying the proposed Patents Bill hence software will be unpatentable once the Bill passes into law.

    And follow that link, and you get:

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

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

  • One more reason to like New Zealand. Sensible people, those Kiwis.

Dennis Ritchie is twice as bright as Steve Jobs, and only half wrong. -- Jim Gettys

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