Pilcher on software patents

February 9th, 2013 at 4:00 pm by David Farrar

Pat Pilcher writes:

For technology to become a fully functioning cog in NZ’s economy, the way we treat intellectual property (e.g. the ideas and concepts behind the software, hardware and other innovation that underpins much of the tech sector) is critically important. In a nutshell, we’d better get our patent laws right or we may find local businesses involved in unwinnable patent fights against lawyered-up multinationals when they could be innovating, exporting and otherwise creating wealth for New Zealanders.

And the patent trolls.

The overarching aim is for the government to provide a balance between innovation and protecting public interests.

Achieving this is no easy feat, and already the bill is mired in controversy as Commerce Minister Craig Foss changed the wording of a clause within the bill which could have huge ramifications for New Zealand’s fledgling software industry.

His amendment has changed some crucial wording in the bill that some say has the government moving away from excluding software from being patented (as per select committee recommendations), to parts of the bill being sufficiently vague that software may indeed become patentable. Clause 10a of the supplementary order paper 120 was amended to read: “..prevents anything from being an invention for the purposes of this Act only to the extent that a patent or an application relates to a computer program as such”

It might only be two words, but from a legal standpoint the addition of “as such” makes all the difference and could see kiwi companies being locked into protracted legal battles against multinationals whose lawyers are likely to emerge as the only real victors, whilst New Zealand could end up on the losing side.

I’m not sure how significant the two extra words are but personally prefer to err on the side of caution and leave them out.

Of equal concern, changes to the bill could see businesses that had invested in New Zealand pulling out. Geomechanica, a Canadian software company had planned to relocate to NZ because they felt that the original patent ban on software as proposed in the unmodified form of the bill would foster an innovation friendly environment. Sadly tweaks made to the patent bill could render a New Zealand business case untenable for them and others, depriving New Zealand of employment opportunities, potentially setting our digital economy back by decades.

According to AJ Guillon, co-founder of Geomechanica, “We have planned our products and marketing based on a relocation to New Zealand, exporting innovative software without the threat of domestic software . If the software patent bill passes with the “as such” wording, we cannot justify a relocation to a country with an ambiguous law on a matter that is so important to us.”

Seems like a good case for a clear law that is explicit that software can not be patented.

18 Responses to “Pilcher on software patents”

  1. Johnboy (21,104 comments) says:

    “Seems like a good case for a clear law that is explicit…..”

    For shame! How can the Lawyers make a decent living if we had clear laws? 🙂

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  2. berend (1,945 comments) says:

    Isn’t it weird that 99.99999999999999999% of NZ software developers don’t want software patents, and the government still rams them down our throat?

    Who are these powerful lobbyists that almost always get their way?

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  3. Reid (21,592 comments) says:

    To achieve this all we need to do is provide the grantee of a patent with the power to rendition at will the CEO of any corporate patent violator from anywhere in the world. As soon as you did that a few times, for real, all the brainy particularly rich patent lawyers, would disappear, no problem. And if we make China comply with that, no matter how much the CEO pays the local mayor to hide them, we’ll pretty soon have no more violators, anywhere. And everyone’s happy. How could they not be?

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  4. Monique Watson (1,324 comments) says:

    So how are any tech start-ups gonna get off the ground? No-ones gonna be willing to invest in an unpatentable idea.
    All you get is a whole lot of fish n chip shop type software services businesses where the owners work for a handful of dimes.

    Currently software has to have an effect in the real world. It’s held to the same standards as every other type of invention.

    Don;t let the bleating of the communists sway you into thinking that just because the rail tracks go every where in the world, this doesn’t mean new forms of transport aren’t patentable.

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  5. hamnidaV2 (247 comments) says:

    Nerd Alert.

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  6. bhudson (4,770 comments) says:

    @Monique Watson,

    No one is proposing to remove copyright protections from software – it is patenting software processes that need to be avoided. In it’s most basic terms (no pun intended) a software company could try to patent the process of calling a sub-process from within the main code stream, that then performed calculations/functions that could act as an input or modifier to the main code stream. Perhaps also known as the SUBROUTINE command.

    That is what industry would see as a perversion of the protection of software intellectual property and what the call to prevent software patents is to avoid. Copyright is still protected, so the start ups will have the IP protection that really matters to protect their investments.

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  7. slijmbal (1,275 comments) says:

    @Monique Watson

    bhudson hits the nail on the head

    we have seen ludicrous software patents that patent the equivalent of the left hand turn in a car and huge fights over it with the bigger pockets winning. Nowadays software patents are a commercial tool for the large company to put up blocks over patents that are truly bleeding obvious.

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  8. berend (1,945 comments) says:

    Monique Watson, just investigate some of the patents granted. Most of them are invented by software engineers all over the world in five minutes.

    Software is like math, you cannot patent a formula.

    And please ponder deeply why NZ software companies don’t want patents themselves. Including our biggest by far, Orion.

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  9. KevinH (1,759 comments) says:

    It is not possible to patent app’s or any software written to run on a windows platform because the global marketplace will consume it and replicate it in modified form within hours of it’s release. The shelf life for programmes is now measured in hours, and unless it’s really clever and unique and has mass appeal you have got to make your bucks in the initial period following release, then within hours , game over.
    Companies like Geomechanica are talking rubbish whining to our government because we can’t protect their intellectual property no more than any government can, it’s open slather on the web, the first rule being: there are no rules so long as you are not caught by the biggies like Microsoft or Apple who can kick your ass.

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  10. Monique Watson (1,324 comments) says:

    Exactly. And this is why the “as such” clause may be necessary. It’s not a true invention unless it has a verifiable effect in the real world. But if it does then it IS an invention and should have patent protection. Patent law dictates this and it would take strong action to make software engineering an exception. It is necessary to have patent-ability on true invention to attract investors and take the product to market. Copyright isn’t strong enough.

    A light switch was ” truly bleeding obvious” in retrospect but it was pretty original in it’s day. So was prozac.

    And it’s rubbish to say that “Copyright is still protected, so the start ups will have the IP protection that really matters to protect their investments.”@bhudson. Patent law gives start-ups runway to execute and validate their idea. “No-one else can replicate the idea whereas a unique but copyrighted “anything” can be replicated closely and pushed out by the big guys.

    Worst case ” as such” scenario :the big guys battle it out.
    Here in Silicon Valley one behemoth or another is always forking out billions to another. This is a better scenario than the big guys mowing the little guys over.
    Scenario: You have your little guy”, right? He toils for ten years to produce a unique product. It has an effect in the real world so it withstands the test of patent-ability. But he can’t get any revenue out of it because some other cunt with deep pockets comes along and effectively steals it.

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  11. bhudson (4,770 comments) says:

    @Monique Watson,

    Worst case ” as such” scenario :the big guys battle it out.

    Actually the worst case, with or without “as such”, is the big guys battling the little guy out. Anything which allows the company with deep pockets to fight a case that they have a software patent will stifle the start ups and threaten their investments.

    Allowing software patents is a far greater threat to innovation from new sources (start ups) than copyright only.

    Having said that, I am not arguing the wording of “as such” – the govt claims it is to ensure that a patent can be granted to an invention that uses software as a part of it. Their concern is that something that should be patentable is not excluded because of that. That makes sense, although their are a number of voices of dissent within the ICT industry. They are using Europe as the example of the implications of adding “as such.”

    The important outcome is that things that should be patentable are able to be. Software processes alone are not that.

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  12. gump (2,372 comments) says:


    One of the major problems with software patents is the reality of submarine patents.


    Is this the innovation you speak of? A system that rewards “inventors” for deliberately not doing anything to commercialise their inventions?

    Software really should not be patentable.

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  13. Falafulu Fisi (2,151 comments) says:

    Monique is correct. I’m sick of pub inventors and cut & paste coders thinking that software codes/algorithms are not inventions worth protected via patent.


    Orion has no invention at all that’s worth being patented. They never discovered anything new and that’s the reason they’re against patent protection of software codes.

    One NZ software company has been doing original R&D which should be protected via patent, is Jade Software Corporation in Christchurch. Their R&D team comprised of a platoon of PhDs in computer science & math. Some of their inventions is original and it is worth being protected. I’m against granting patent to pub inventions & patent trolling. Most software developers don’t do the kind of original research that the team of PhDs at Jade Software are doing, so they have no fucking clue of how expensive to get a team of PhDs to come up with new inventions. Orion Health don’t do the kind of cutting edge research that Jade is doing, because they have not invented anything new.

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  14. gump (2,372 comments) says:


    Orion has discovered something that Jade hasn’t.

    They’ve discovered how to make money out of software. Orion has been trading for half as much time as Jade, yet generates over twice the revenue and (unlike Jade) is still growing strongly.

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  15. Falafulu Fisi (2,151 comments) says:

    gump, so the army of R&D PhDs at Google, Microsoft, IBM, Intel in which they protect their inventions via patent have not discovered making money, huh? Your point is irrelevant and useless. Sam morgan made as much money from the sale of TradeMe than Ian McRae. But TradeMe doesn’t do high valued R&D that Microsoft, Google, and the high tech giants are doing that’s worth protecting. I’m not against Sam Morgan, Ian Mcrae and all other entrepreneurs making money, because I’m a capitalist too. I’m against property rights violations and it doesn’t matter if the entrepreneurs are millionaires or not. The issues is the protection of ones’ intellectual property rights via patents. Page & Brin from Google understand patent protection of what they invented (since their invention was an original true R&D when they were students at Stanford) but somehow, Ian McRae from OrionHealth doesn’t understand the concept. The Google pagerank algorithm was patented by Standford when Page & Brin did their PhDs there. Google bought the patent back (i think in early 2000s) for about 3000 millions. Now, can you see the value of patents or not? Until you do original R&D, then you have no clue of its value.

    I repeat here. I’m against the patent protection of pub inventions (it can’t be equated to inventions from the expensive R&Ds that’s done by researchers in big corporations such as Microsoft, Google, IBM, Intel, etc,… I’m also against patent troll.

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  16. Falafulu Fisi (2,151 comments) says:


    It should be : for about 300 millions instead of for about 3000 millions

    From Google PageRank Algorithm

    The name “PageRank” is a trademark of Google, and the PageRank process has been patented (U.S. Patent 6,285,999). However, the patent is assigned to Stanford University and not to Google. Google has exclusive license rights on the patent from Stanford University. The university received 1.8 million shares of Google in exchange for use of the patent; the shares were sold in 2005 for $336 million. See ref [2] and [3]

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  17. berend (1,945 comments) says:

    Falafulu Fisi: what we see in the real world is not the fantasy you and Monique are dreaming off.

    What we see in the real world is completely spurious software patents, what we see is that innovative startups are crushed by spurious software patents from the big moguls, and that innovative companies are sued by shells which are simply holders of patents, not producing anything of value, just making money from suing others.

    Your dream world does not exist.

    And saying Orion doesn’t do any R&D or doesn’t produce anything of value, while the definition of value is, I would say, that people are prepared to pay for it. I’m not going to take down Jade here, but really, I’m doubtful you know the company from your description.

    Why do NONE of the small guys want software patents? According to you two they should have the most to gain.

    Software patents are used to kill the small guys. And please, give me any example where the page rank patent was actually used as such, i.e. when was it used in court to stop others from using it? The world would have been exactly the same if we had no software patents. So your example does actually the opposite from what you tried to prove.

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  18. Falafulu Fisi (2,151 comments) says:

    What we see in the real world is completely spurious software patents

    Do you understand what I meant by pub-invention in my previous post? Try and understand of what it is, then come back to comment. I suspect what you’re talking about is the exact thing I’m against being protected by patent, which you & me agree that it shouldn’t be protected at all.

    Can you mention some examples of spurious software patents?

    I’m doubtful you know the company from your description

    Ha! I know what they do and what they don’t do. They don’t do cutting-edge R&D. I have had talk with their senior developers and I get to know of what they don’t know. They’re starting to get in to the domain of business intelligence, but they don’t have specialists in machine learning, etc… You need PhD dudes who know machine learning well. I can also tell you other areas in medical informatics that I know that OrionHealth have no clue about. They have not done anything or R&D on automated clinical decision support system. That sort of development requires the knowledge of PhD qualifications.

    Software patents are used to kill the small guys.

    Have you got an example? Again, you might be talking about pub-inventions being granted patent protections. I say again, pub-inventions is not inventions worth protected via patents. However, real original inventions are and that’s my argument here.

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