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Software Now Un-Patentable In New Zealand 221

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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  • by Anonymous Coward on Thursday July 15, 2010 @11:22AM (#32914164)

    Can we now expect the OpenOffice New Zealand version to basically "be" microsoft office, since software patents won't work there? How about a linux or other OS that is 100% Windows compatible? Do you really think M$ will let this fly, once stuff like this starts hitting torrents, etc. from New Zealand?

  • Immigration (Score:4, Interesting)

    by Lando ( 9348 ) <lando2+slash@gmail. c o m> on Thursday July 15, 2010 @11:31AM (#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?

  • by Anonymous Coward on Thursday July 15, 2010 @12:27PM (#32915040)

    You can sell the software just fine without patents. It'll take time for competitors to catch up and if you're constantly improving your software, instead of sitting on your ass, then you're always going to be ahead. In fact, the competition will motivate you to continue working on your algorithms and your clients will be better off.

  • by Marcion ( 876801 ) on Thursday July 15, 2010 @12:32PM (#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.

  • by ergrthjuyt ( 1856764 ) on Thursday July 15, 2010 @12:35PM (#32915118)
    I agree with you 100% - and it just goes to show that there is sometimes no amicable solution and someone has to lose out. I think a lot of people miss this very important point when considering intellectual property rights.

    Overall, I think this news is a win for New Zealand. But that doesnt mean all the losers are patent trolls.
  • by idontgno ( 624372 ) on Thursday July 15, 2010 @12:46PM (#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 columbus ( 444812 ) on Thursday July 15, 2010 @12:46PM (#32915282)

    This is what I was curious about.

    How does this affect open source companies that are based in NZ, but distribute globally?

    What if the Mozilla corporation moved its operations to New Zealand? Could it then incorporate the h264 codec into Firefox & release Firefox to whoever wished to use it? Would Mozilla be beyond the reach of MPEG-LA who hold the software patents on h264? Would MPEG-LA be able to sue users of Firefox outside of of NZ (note: I don't think they would do this).

  • Re:Huzzah! (Score:3, Interesting)

    by dov_0 ( 1438253 ) on Thursday July 15, 2010 @01:18PM (#32915794)
    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.
  • I think it's a misinterpretation to say "allow inventions that contain embedded software to be patented" means "software patents are allowed".

    The way I'm reading this, it means that if a larger invention happens to include some embedded software, that larger invention is patentable. So, if you invent a really cool electromechanical device (robot overlord), it doesn't become impossible to patent the mechanics just because they need some control software to work.

    Which is pretty reasonable, IMHO. Patents were created back when inventions were primarily mechanical; since the hardest part about mechanical design is the initial concept. Unlike software, where million dollar ideas are a dime a dozen, and the real difficult is implementation. ( I speak from experience; I work in mechatronics, where design is a combination of software, electrical, and mechanical).

    As long as the embedded software isn't patentable in and of itself, I see nothing wrong with this.

    Contrary to what Slashdot may believe, though, that's the current state of the law both in Europe and the US. Software alone is unpatentable, but if it's tied to (or embedded in) a machine, it's patentable subject matter. So, a system claim with a processor and memory and the processor executing various software modules is patentable, because it's not the software that's being claimed, but the system with embedded software. Similarly, a method claim performing the software steps that has each performed "by a processor of a computing device" is an invention with embedded software.
    The part that Bilski and other decisions split off is method patents that are purely computing steps, such that a person could perform them with a pad and paper, or even in their head. And the rationale for it is that if you allow people to get patents on something that could be done in your head, then how do you protect it, legally? If someone reads your patent application and thinks about it, did they just infringe? Do you get an injunction ordering people to stop thinking? No... So you can't patent that stuff. If the claim explicitly requires a computing device and processor performing various steps, it's impossible to infringe in your head, and we aren't making thoughts criminal, so patenting that stuff is fine.

    Again, the rationale for why software per se isn't patentable isn't "because it's just math". You have to go a step deeper - what's the rationale for why "just math" isn't patentable? It's what I mentioned above - making thoughts criminal.

    Opinion Disclaimer: I am a US patent agent in the high-tech field.
    Legal Disclaimer: I'm not your patent agent, and none of this is legal advice, nor does it necessarily reflect the opinions of my clients or firm. This is solely my opinion and should not be relied on for any reason.

  • Re:Huzzah! (Score:3, Interesting)

    by Bigjeff5 ( 1143585 ) on Thursday July 15, 2010 @04:45PM (#32919176)

    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 know what is.

  • Re:Huzzah! (Score:2, Interesting)

    by Bigjeff5 ( 1143585 ) on Thursday July 15, 2010 @05:20PM (#32919642)

    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 should be able to read your patent and say "Oh, that makes sense" and write the program.

    Most software patents would fail this test, but the really groundbreaking stuff would not fail, and that's the stuff that patents exist for. That's why they are called innovations.

    It may mean they need to hire some software engineers to sit and look at the idea and try to come up with a way to implement it on their own before they look at the solution. If they come up with the same solution, then obviously it should not receive a patent.

    The test I give is applicable to physical inventions, too, with some slight modifications in wording. If you can give any engineer in the particular field a problem and they come up with the same solution you did, your solution is not original and is not patentable. If they are stumped, or their solution is significantly inferior to yours, you are probably on to something, and after a little more verification you can get a patent.

  • Re:Huzzah! (Score:3, Interesting)

    by steelfood ( 895457 ) on Thursday July 15, 2010 @06:26PM (#32920410)

    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:Huzzah! (Score:3, Interesting)

    by MechaStreisand ( 585905 ) on Thursday July 15, 2010 @06:40PM (#32920574)
    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.

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