Thumbs down for software patents in NZ
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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.”
“We received many submissions concerning the patentability of computer programs,” says the committee in the preamble to the Bill. “Under the Patents Act 1953, computer programs can be patented in New Zealand, provided they produce a commercially useful effect.
“Open source, or free, software has grown in popularity since the 1980s. Protecting software by patenting it is inconsistent with the open source model and its proponents oppose it. A number of submitters argue that there is no ‘inventive step’ in software development, as ‘new’ software inevitably builds on existing software.”
Software can still be protected by copyright and by the terms of its licence.
A requirement for a genuine “inventive step” — a development that would not be obvious to a person skilled in the appropriate field — is a feature of the Patents Bill, which in general imposes tighter requirements than the existing Act before a patent can be obtained.
“[Some submitters] felt 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. In general we accept this position,” the committee says.
It admits that there was some doubt over embedded software, which forms an integral part of a machine. It sought ways of making a distinction between embedded and other software and decided drawing a “clear and definitive” line would be too difficult.
In addition, “we received advice that our recommendation…would be unlikely to prevent the granting of patents for inventions involving embedded software,” the committee says.
NZ Open Source Society president Don Christie applauds the move in his blog Pass the Source.
“New Zealand MPs of all parties are to be congratulated on recognising what to many, for many years, has been patently obvious,” he writes. “There are some members of that committee that paid particular attention to the detail of the debate; there were also lots of submissions made by patent lawyers in favour of patents.
“These MPs weighed up the arguments and came down against software patents. This is ground-breaking and visionary. I congratulate our law makers today.
“To all who took the time and effort to write submissions and who took the unique step of coming to Wellington and backing up those submissions orally…congratulations.”
Reaction to the change among a broader range of developers at a Computer Society meeting in Wellington last night was also positive.
Christie and other supporters acknowledge the battle is not won yet. The Bill now goes back to the full Parliament for its second reading.
It has also been divided into two parts; the sections concerning registration of patent attorneys have been extracted into a separate Bill, which will be delayed, because of the need to co-ordinate these provisions with Australian law.
I would also comment that I do not subscribe to the notion that technology move so fast that 'innovation' becomes commonplace before a relevant patent is granted. If you actually dig into the history of much of this innovation, it is *usually* based on "prior art" in legalese terms, or something that shouldn't be patented based on existing patent law. Where technology has moved quickly, along with government patent offices, is in granting patents long before the courts (and case law) catches up and establishes clear guidelines. Here in the US, with software patents, the number of companies trying to patent 'algorithms' first discovered by the ancient Greeks is overwhelming (not to mention anything close to an 'algorithm' described since that time).
Patents were invented not to stifle innovation, but to promote it. By providing a time-limited protection to inventors, they no longer needed to keep everything secret. They could publicly disclose their invention, get protection from others capitalizing on their hard work, license the technology and benefit from their effort. In return for this protection, the inventor agreed to give up that protection after a certain amount of time and allow everyone to benefit from this invention (the "public good" aspect of government intervention in this area). Further, you could only patent processes: you cannot patent the light bulb, but you can patent the process for making a specific light bulb, etc.
Whether software, in specific instances, delineates specific processes is arguable. However, the literally billions of lines of code written to date, in reality, means that no one can definitely prove that a particular method for accomplishing a task in software is either unique or non-obvious. Imagine trying to patent a particular way of using a pen. The rest of the software patents really describe UI, which courts have viewed as having only limited protection even under copyright law.
I support this committee's view of software patents, and hope that the US finally gets it together and joins the rest of the world is throwing out this unwelcome expansion of patent law semantics. It is not so much that software patents stifle innovation; it is that software patents have no basis in either law nor actual software development.
Posted by Anonymous at 6:51:40 on April 10, 2010
I can see the necessity of patents in industries where you need to invest millions of dollars to create new ideas, which could then easily copied by other companies. or instance if medical drugs could not get patents, nobody might go through the immensely expensive processes of finding new ones.
In software, however, it is a rare exception that generating a single innovative idea here is very expensive, so patents are not necessary to ensure innovation. Its value lies in the well executed composition of elements, which is not patentable, anyway - the appropriate way to protect software investments are copyright laws.
So the primary business case for software patents is to go after competitors, which is not good for competition and a serious latent threat to innovative small businesses who do not have the ressources to check for every small detail whether someone snatched a patent one needs to work around.
Posted by Hans-Peter St#rr at 18:12:35 on April 7, 2010
I know that here in Slovenia swpats are not recognised as valid.
Posted by Anonymous at 1:36:47 on April 2, 2010
The patent in question was the XML format for documents.
Posted by Michael Seadon at 21:23:25 on April 1, 2010
An intelligent committee of politicians... This has to be a first.
Posted by Anonymous at 18:52:03 on April 1, 2010
Posted by David at 17:27:37 on April 1, 2010
Posted by Lawrence D'Oliveiro at 0:25:16 on April 3, 2010
As Donald Knuth - one of Computer Science's founding fathers said - if software patents had been around when he was producing software, much of what he made would have been illegal.
"Open source may be all over the place today, but what about *developing* stuff like video codecs? I highly doubt the open source model could make fundamental advances like that in the wild."
- oh, so Theora doesn't exist eh? Open source HAS developed video codecs.
Case in point of patents screwing innovation: the in-development HTML 5 standard is in stasis due to the inability to decide on the provision of a video codec BECAUSE OF PATENTS:
"Patent encumbrance is one of the driving forces behind the HTML 5 video codec controversy. The patent licensing requirements mean that H.264 codecs can't be freely redistributed, making the format a non-starter for Mozilla and most other open source browser vendors. Opera also objects, saying that the licensing fees are too high. Mozilla and Opera strongly advocate Ogg Theora as an alternative because its freedom from known patents could ensure that there are no licensing barriers that prevent ubiquitous adoption.
Apple objects to Ogg Theora, claiming that the lack of known patents on Theora doesn't rule out the threat of submarine patents that could eventually be used against adopters"
I notice that most of the pro-patent comments here are woefully unaware of the actual state of affairs regarding patents and how they are actually applied to software in the real world.
Posted by Peter Ashford at 13:11:56 on April 1, 2010
Read his open letter to the US patent office (http://progfree.org/Patents/knuth-to-pto.txt)
Posted by Andrew at 15:04:28 on April 1, 2010
Posted by Andrew at 5:51:59 on April 3, 2010