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Fight against patented software cranks up

The fight against an amended Patents Bill will continue, despite passing its second reading.

Commerce minister Craig Foss says the bill will mean a computer programme itself will not be patentable, yet a device such as a digital camera or washing machine, which makes use of the programme, will be patentable.

But the move has raised concerns and anger among industry players.

New Zealand Open Source Society president David Lane is inviting New Zealand-based software developers to make their voices heard through a website petition.

Mr Lane says the seemingly minor wording change will create a "bonza" for IP lawyers and a nightmare for productive software developers.

Labour’s communications and IT spokeswoman Clare Curran had tried to introduce an alternative amended clause and was reasonably confident she had the numbers to do so.

She believes Mr Foss’ amendment essentially means some lines of code, which are used in embedded software, may never be able to be used again.

“In order to create and develop new software, companies need to be able to build on existing software,” Ms Curran told NBR ONLINE.

She believes this change would stifle development and tie it up in litigation.

But Mr Foss believes the Patents Bill will better align New Zealand law with overseas markets and make it easier to export and grow.

“The Patents Bill will continue to protect genuine innovations, while raising the bar for what can be patented. The current approach to patents is too broad and restricts New Zealand businesses’ ability to adapt and improve existing inventions.”

More by Blair Cunningham

Comments and questions

Go sign the petition -

The minister is incorrect when he says the bill will protect genuine innovations. All it will protect is the enormous defensive patent arsenals of the established multinational giants (e.g. Microsoft, IBM, Apple, Google plus the troll holdings), and the revenue streams involved in litigation. Real innovation is the implementation of algorithms and not the code itself.

Is the ministry misinformed, in alignment with american money, or just not done his homework?

All three, I expect. Plus pressure from US politicians. They obviously fear the "NZ disease" spreading world-wide in a triumph for common sense over vested interest.

Curran, and opponents of the bill as it is worded, don't understand it. "She believes Mr Foss’ amendment essentially means some lines of code, which are used in embedded software, may never be able to be used again." UTTER RUBBISH. The wording Foss has proposed is exactly the same as in Europe, and it has been interpreted to mean that software, per se, is not patentable - whichi is what it says! Only software that interacts with the world in a physical way (and is inventive) is patentable. Software, as such, isn't. If we go with this wording we have all the benefit of the European case law supporting that. Curran's amendment just leaves us out on our own with no certainty at all.

I've got to catch up with this if someone has a good primer?

If software cannot be patentable, does this issue then crossover into copyright issues?

As I've said before, the vast difference between patents and copyright is that it is simple to know if you are breaching copyright when you code but impossible to know if you are breaching someone's software patent somewhere.

As I've said before, one of the many problems with software patents is that the patent covers far more than merely the "inventive" step - and often effectively patents the problem as well as the solution.

Any software app in a smartphone interacts with the real world. Software that is involved in communications of any kind interacts with the real world.

Computing evolved at the fastest rate ever while software was protected only by copyright rather than patents. There is absolutely no evidence software patents are required to support software innovation - whether embedded or otherwise. On the contrary, the additional costs and risks they present to innovation and competition are large and very real.

Cheers Alan ... but are you saying that software code is covered by copyright?

Yes, always has been. I was putting copyright notices on my code back in the 1970s.

I write software that is used on mobile devices that interacts with live market data and can be used to assist with business decisions and prompt further interaction between the user and a central computing system. This is exactly the type of thing that gets software patents, the implementation of a business process "on a mobile computing device" "receiving XML data from a central server to a mobile computing device" etc. etc. As soon as you have two computers and a network like the majority of the next wave of innovative software using smartphones etc. you having something that interacts with the physical world and is patentable because of the use of data transmission across various Wifi, GSM, LTE, Internet based networks.

The "as such" clause stops something like a simple program that runs on a single generic computer but in the ever increasing networked world the single program on a single computer is becoming a thing of the past. The "as such" loophole does nothing to protect the innovation that will occur with continued developments of mobile and cloud computing and stifle genuine independent innovation for 20 years in every area of software where a patent is granted and people do not have the millions of dollars required to fight legal battles.

This is a National Government kiss ass to the USA for the purpose of complying with upcoming TPP Treaty obligations because our government will do ANYTHING and sell our any New Zealander or New Zealand company (or industry) to get a USA Free Trade Agreement.

Okay, it's all the double negatives in this story that makes it confusing. So, Rob, you're actually saying Foss's legislation (given an increasingly networked world) will lead to a higher level of patent/protection, not a lower one, and that will stifle innovation (without getting into the in's and out's of IP on a philosophical basis)?

And so as a developer, you would be in favour of Clare Curran's amendment?

Just a yes/yes, or yes/no etc will do.

Yes I am saying the proposed legislation will stifle innovation.

Perhaps for the first time in my life I agree with Labour (and Clare Curran's) amendment if it would allow software patents only in embedded systems, like a chip that runs the motor in a F&P washing machine etc.

Excellent: I've got it now ... cheers Rob.

And of course there is no need for a patent even in that case. The chip software would be protected by copyright as it always has been.

Yes, I like your points also, Alan.

Industrial innovations have been patentable for sometime Alan and where an integrated circuit with an embedded controller chip is used to control the speed / temperature of a mechanical washing tub for optimum washing or drying without damaging fabrics this is clearly subject matter that is and should be considered under the terms of the TRIPS Treaty Article 27 "... involve an inventive step and are capable of industrial application".

I do not believe in the "All Patents are Bad" idea, sorry. New Zealand does have international treaty obligations our legislation is required to adhere to.

The point is limiting the scope of patentable subject matter to specifically exclude computer programs and their resulting object code (i.e. the 0's and 1's that run on the CPU's) that are capable of running on general purpose or multi-functional computing devices. The writers of the TRIPS treaty considered "computer programs" works of authorship, not inventions, and specified that under the treaty they shall be protected along with other works of literary creation by copyrights. They also where very clear that copyright (which includes works of authorship in the form of computer programs) should not extend to protecting "ideas, procedures, methods of operation or mathematical concepts as such". Articles 9 & 10 TRIPS Treaty. (10 points of you just worked out where the inspiration for the sneaky "as such" loophole in the current patents bill originally comes from)

The problem with the current bill which just passed the second reading is that it would allow any computer program that is anything more than just a computer program by having simple qualifications such as , "on a mobile device, or on the Internet, or that flashes an attached warning light" would be patentable subject matter and stop any independent invention or implementation of the same subject matter for 20 years, which is an eternity in the IT landscape.

The proposed Curran amendment specifies that the exclusion of software patents "do not prevent an invention that makes use of an embedded computer program from being patentable". This clarification changes a couple important points, 1) the invention has to be more than just the computer system and user/user interface, or else its not "embedded", 2) it removes the networked effect patents where companies have been getting software patents over seas for established business processes "on the internet" like Amazon's infamous 1-Click patent that is as simple as remember a previous customers name, address and payment details and letting them buy a product without having to re-enter their information, just like every retailer who lets a known customer buy products without refilling an account opening form for each purchase.

The distinction between the limited "embedded" approach vs the undefined "as such" loophole is profound and also I believe in keeping with our TRIPS Treaty objectives in Article 7 "The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge".

Under the Vienna Convention on Treaty's Article 31 (1) New Zealand must consider the terms of the TRIPS Treaty "in their context and in the light of its object and purpose." It's very clear that general computer programs where never intended to be patentable under TRIPS and if we allow the "as such" loophole to go through we will be in violation of not only the TRIPS Treaty but the very principals of the Vienna Convention on the Law of Treaties too.

Notwithstanding the virtue or otherwise of an invention to control washing machines (and I am not sure that rotor speed control is not as blindingly obvious as one-click), the software in the chip can be entirely protected via copyright without needing a patent.

As the owner of SaaS software IP, some years ago I started a patent process by registering a specification and receiving approval to proceed with a full application (it cost me 20k just to get to that far!). I didn't go any further because once in the process you get given a cost projection by your patent lawyer which just makes your eyes water!

This is why I believe the bill will kill innovation if patents become the norm - or worse, becomes a requirement to get recognition from regulatory authorities, investors etc.

Once again the government machine another useless law designed to protect big business. Whatever happened to the proponents of a bill actually working through the logic before putting it forward?

It should be mandatory for politicians to publish the working logic of a proposal before it gets accepted. I.E. proper peer review.

I worked for a company and before management rolled out anything new, they would involve all staff. The logic accompanied the idea, and it had to pass the dumb test and the clever test.

Ministers proposing laws about subjects they nothing about and relying on industry experts is NOT the correct process.

It is a sign of the times, and the arrogance of those who serve everybody but the people who elect them.

I regret to say that the legal profession has a huge and unfortunate vested interest in this outcome.

Copyright is claimed via a simple declaration by the author. No lawyer is necessary. It is free, simple and crystal clear.

Contrast patents which cost a fortune in legal work and fees to produce a manuscript which is virtually unreadable by any normal human being.

Can Foss even understand what patent lawyers are going to write to get through the cracks??

A machine readable storage medium storing executable program instructions which when executed cause a data processing system to perform a method comprising: receiving a user input, the user input is one or more input points applied to a touch-sensitive display that is integrated with the data processing system; creating an event object in response to the user input; determining whether the event object invokes a scroll or gesture operation by distinguishing between a single input point applied to the touch-sensitive display that is interpreted as the scroll operation and two or more input points applied to the touch-sensitive display that are interpreted as the gesture operation; issuing at least one scroll or gesture call based on invoking the scroll or gesture operation; responding to at least one scroll call, if issued, by scrolling a window having a view associated with the event object; and responding to at least one gesture call, if issued, by scaling the view associated with the event object based on receiving the two or more input points in the form of the user input.

I have no confidence at all that MP Foss knows one end of a computer programme from another.

In fact, I would wager money that he doesn't. It is like asking the Agriculture Minister to legislate on animals when he doesn't know what a bull looks like, or which end the grass goes in and which the legislation comes out.

The idea that the ironically named F.O.S.S. is clueless and the Government are somehow ignorant of the effect of this change is extremely naive in my view.

If this is going to be stopped then some very public opposition from well-known software developers is going to be required. Where are you Ian McCrae, Sam Morgan, Rod Drury et al?