A good move from the Govt on patents

May 9th, 2013 at 1:25 pm by David Farrar

has announced:

Commerce Minister Craig Foss has today released a supplementary order paper (SOP) to clarify issues around the patentability of computer programmes in the Bill.

“Following consultation with the NZ software and IT sector, I am pleased to be further progressing the Patents Bill with this SOP. These changes ensure the Bill is consistent with the intention of the Commerce Select Committee recommendation that computer programs should not be patentable,” says Mr Foss.

Today’s change is to codify a test set out in UK case law to provide clarification around the “as such” wording used in SOP 120 (tabled 28 August 2012).

“I would like to thank the NZ software and IT sector for their engagement over the last few months. I’m confident we’ve reached a solution where we can continue to protect genuine inventions and encourage Kiwi businesses to export and grow.

The SOP is here. A key extra clause is:

A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.

There had been considerable concern that the previous proposed wording with the “as such” clause could lead to a lack of clarity in the law, and that it might not achieve its intention that software is not patentable. This extra clause provides that clarity and is excellent news from the Government and Minister,

To also achieve greater clarity, the SOP provides an explicit example of what is not patentable in terms of software, namely that a chip for a washing machine is, but an online filing software system is not (the code is copyrighted though).

The Institute of IT Professionals has welcomed the announcement:

The Institute of IT Professionals, New Zealand’s largest IT representative body, strongly supports the Government’s announcement today clarifying that software will not be patentable in New Zealand, removing a major barrier to software-led innovation. …

“The Institute thanks Minister Foss for responding to industry concerns, clarifying the Patents Bill’s intention to remove patentability of software and for taking extra steps to ensure the law around software patents is clear and unambiguous,” Matthews said. “Software will not be patentable in New Zealand and a major barrier to software innovation has been removed”.

“We also acknowledge the work of United Future’s Peter Dunne, Labour’s Clare Curran and other political parties who have listened to the industry’s concerns and contributed towards a solution,” Matthews said. “It’s great that all parties support software-led innovation in New Zealand.”

I’d agree with the that MPs from several parties helped contribute to getting a law that will be clear and good for New Zealand. The recommendation to do so was a unanimous one by a select committee.

Ian McCrae, chief executive of New Zealand’s largest software exporter Orion Health agreed, saying today “We welcome this announcement. Under the current regime, obvious things are getting patented. You might see a logical enhancement to your software, but you can’t do it because someone else has a patent. In general, software patents are counter-productive, often used obstructively and get in the way of innovation. We are a software company and as such, our best protection is to innovate and innovate fast.”

John Ascroft, Chief Innovation Officer of Jade Corporation said “We believe the patent process is onerous, not suited to the software industry, and challenges our investment in innovation.”

Orion and Jade together account for around 50% of software exports from New Zealand.

The decision is also welcomed by InternetNZ:

(Internet New Zealand Inc) welcomes today’s tabling of a Supplementary Order Paper (SOP) that makes it clear that computer software is not patentable in New Zealand. …

The question of software patents has been an important issue for InternetNZ for several years. InternetNZ has previously made submissions on the issue, noting that software is inextricably linked to the good functioning of the Internet. Patenting software would not only make the continued development of the Internet more difficult, it would reduce innovation and could well stymie interoperability of various software platforms.

InternetNZ spokesperson Susan Chalmers says InternetNZ is happy to see the issue now resolved and looks forward to the passage and implementation of the Patents Bill, a long-awaited and much needed update to a large component of New Zealand’s intellectual property regime.

So it is a good outcome all around. Congratulations to Craig Foss for constructively working with industry groups to get this issue resolved, and kudos to other MPs such as Peter Dunne and Clare Curran who supported getting a good law.

I’m personally very pleased that National has taken a balanced approach on intellectual property issues. While of course there are areas of disagreement, the current Government has consistently moved things in the right direction. To name a few:

  • Repealed the previous three strikes guilt upon accusation law
  • Suspended the provision for termination of Internet accounts for repeat copyright infringement
  • Set the copyright infringement filing fee at $25, $5 higher than recommended by officials
  • Kept the fee at $25 when reviewed, despite massive opposition from the MPAA
  • Have consistently rejected the US proposed IP chapter for the TPP
  • Amended the law to exclude software from being patentable

Now as I said, there are still a few areas I’d like further change. but overall the direction in the last few years has been a positive one.

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29 Responses to “A good move from the Govt on patents”

  1. Alan Wilkinson (1,878 comments) says:

    Fantastic result for common sense, innovation and creative start ups.

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  2. gump (1,649 comments) says:

    I’m really pleased that the Government has taken the time to sort this out properly.

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  3. hmmokrightitis (1,590 comments) says:

    Per the above, a bloody good outcome, thank goodness sense prevailed.

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  4. Matt (227 comments) says:

    Are algorithms mentioned? They are not necessarily computer programs (for instance, a teacher may use the “Quick sort” algorithm to order her class from shortest to tallest) and indeed were invented long before computers. Surely therefore they could still theoretically be patented even though their most common modern usage is in computer programs.

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  5. Pete George (23,567 comments) says:

    Pointed out on Twitter:

    Paul Matthews ‏@nzPaulM

    Many may not realise that @PeterDunneMP was pivotal in getting today’s #swpatent amendment. http://www.unitedfuture.org.nz/peter-dunne-patents-bill-a-win-win/ … Please RT to say #thanks!

    Which links to Dunne claiming some credit for himself…

    UnitedFuture leader Peter Dunne has welcomed the agreement reached between the New Zealand software industry and the Government on the wording of an amendment to the Patents Bill that will ensure computer software will remain as open source and not subject, of itself, to being patented.

    “UnitedFuture had made it clear that it would not support the provisions of the Bill with regard to embedded software as they stood, and that the amendment proposed by Labour MP Claire Curran would seriously compromise and infringe a number of New Zealand’s trade agreements,” Mr Dunne said.

    “For those reasons, given that the Bill’s fate most likely hinged on UnitedFuture’s vote, we encouraged Minister Foss and his officials to resume negotiations with the NZ Institute of IT Professionals to develop a more acceptable provision.

    “I am delighted they have now reached a common-sense position on this issue, which UnitedFuture will now be happy to support.

    “This now means that the updating of New Zealand’s outdated patent laws can proceed, without disadvantage to the local software industry, and is another good example of how effectively UnitedFuture uses its casting vote influence,” he said.

    Credit where it’s due.

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  6. wrightingright (143 comments) says:

    Matt, you’d have to be insane to want algorithms to be patented if you understood the implications!

    They’re just another expression of mathematics, is as mad to patent algorithms as it is to patent arithmetic!

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  7. Alan Wilkinson (1,878 comments) says:

    I have some sympathy for patents for encryption, compression and sort algorithms as they represent genuine innovation and are not easily protected by copyright. However, that’s about where my acceptance would end.

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  8. Matt (227 comments) says:

    I don’t think they ought to be patentable. I think the word “solely” should be replaced by “predominantly” which would resolve the problem.

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  9. Tharg (15 comments) says:

    First I heard of this issue was in this fantastic TAL episode. It’s a great backgrounder and shows why the govt have just done an eminently sensible thing. http://www.thisamericanlife.org/radio-archives/episode/441/transcript

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  10. Monique Angel (291 comments) says:

    Guess it means that we in the US have first mover advantage when it comes to patents.

    We’re just gonna trawl your open source and “copyright” shit for innovative ideas and patent it over here and sock you with the patent at our leisure.

    Go give Claire Curran a big wet slobbery kiss, fanbois. It’s wonderful news.

    Actually it;s pretty much a non event, but when you’re scratching your balls wondering why there is no real investment in New Zealand, I’d suggest that you look at the track record of outlawing innovation by the left wing National Government.

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  11. toad (3,674 comments) says:

    Glad the Nats can get past kowtowing to big multinational corporate demands and make a policy decision that is in the interests of innovation, small business, and job creation for once.

    Hope that trend continues, but I’m not holding my breath.

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  12. queenstfarmer (782 comments) says:

    Monique, you couldn’t pack more misunderstanding in one post if you tried!

    1. NZers can still get patents in the US, if they want.
    2. Copyright has nothing to do with patents
    3. If your patent is based on “trawling” for pre-existing ideas, it’s prior art and you can’t patent it.
    4. You can’t “sock” someone operating in NZ for violating a US patent.

    You obviously have no idea what you are talking about.

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  13. Slipster (170 comments) says:

    @Matt:
    /quote
    “…were invented long before computers. Surely therefore they could still theoretically be patented”
    /unquote

    Huh? It’s the other way around actually. What you describe cannot be patented exactly because it’s a kind of “common knowledge” thing that every one familiar with the field would know too.

    Technically, in patent law, this is called “Prior art”. If it can be shown that there is prior art for something, that something can’t be patented.

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  14. Jim (398 comments) says:

    It still looks too much like slippery language to me. Consider all the h.264 related patents – many of which would fail the test of “the actual contribution made by the alleged invention lies solely in it being a computer program.” because they are just encoding standards and methods. Not necessarily software.

    See http://www.patentbuddy.com/Patent/7551674 for example.

    These patents effectively prevent anyone making software that can encode/decode video to ITU-T and ISO/IEC standards without violating dozens of patents.

    The worst “software patents” aren’t patenting software as such, but rather algorithms that could be implemented as pure software, embedded software, or maybe even a FPGA. Arithmetic coding has even been covered under numerous US patents and that is not a computer program. It’s just simple mathematics.

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  15. Alan Wilkinson (1,878 comments) says:

    @Jim, hard to see how that patent could make an “actual contribution” other than by being realised in a computer program.

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  16. Jim (398 comments) says:

    @Alan, I’m not so sure.

    There are some patents that are clearly software. The various online shopping basket, 1-click, spellcheck-my-sms, etc patents. These are easy to spot because they are from the US and written in crayon.

    Then there are the algorithms (methods) carefully written to be complicated enough to impress the casual observer, broad enough to cover any potential implementation in software or hardware, and vague enough to give lawyers something to argue over.

    Many of these algorithm-type patents can be implemented in software and/or hardware. That neutralises the “solely computer program” qualification. Solely is quite restrictive.

    Perhaps it would be easier for us to say that software can not violate a patent.

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  17. Matt (227 comments) says:

    @slipster I’m not trying to say that existing algorithms could be patented, but rather that the concept of an algorithm is independent of a computer program and so theoretically new algorithms could be patented under the proposed law. Since that is what this law change is supposed to prevent, I thought it was an important point.

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  18. Alan Wilkinson (1,878 comments) says:

    @jim, you can’t implement that algorithm in hardware. You can only implement it in software and then load it into hardware. It is still implemented in and by a computer program.

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  19. Jim (398 comments) says:

    @Alan, that can absolutely be implemented in hardware (and no, I don’t mean with a general purpose CPU and a “computer program” but rather millions of logic gates in an ASIC). The claims are broad enough to cover hardware and software. For example in that patent above:

    “A decoder comprising:
    a storage for storing a first video picture, a second video picture, and a third video picture; and
    at least one processor for:
    computing a first order difference between an order value for the second video picture and an order value for the first video picture;
    computing a second order difference between an order value for the third video picture and said order value for said first video picture;
    calculating a particular motion vector for said second video picture by multiplying a motion vector for the third video picture with a particular value that is based on said first order difference and said second order difference; and
    decoding at least one video picture by using the calculated motion vector.”

    This stuff is already all done in hw. You can buy a CMOS package from TSMC with about 550k gates that will decode h.264 HP 1080P including all of the patented methods within it. You can also find a 100% software equivalent, a “computer program”.

    See Video Compression from the Hardware Perspective p239 for intra-frame prediction in hardware. That chapter even describes a hardware implementation of CABAC.

    I’m with @Matt on this one. Looks to me like patent law strongly guided by someone who wants to keep patent coverage of techniques that can be used in software.

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  20. Alan Wilkinson (1,878 comments) says:

    The CMOS is still executing a computer program, Jim, and most probably within a computer program.

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  21. Jim (398 comments) says:

    You just don’t seem to get it. There’s no computer program in the hardware implementation.

    I’m a developer myself. Started with assembly language about 28 years ago. Have built hardware and software around microcontrollers, tinkered with FPGA development platforms, experimented with CUDA and OpenCL, written image processing filters, and now working with functional languages. Some of my engineering colleagues do actually work for semiconductor manufacturers and we like to talk about this stuff for fun some strange reason.

    I’m not a chip engineer however I can add two numbers together with software, and I can also lay out a circuit using discrete logic to do the same thing without a line of code in sight. I know the difference between hardware and a computer program as it is my day job.

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  22. Alan Wilkinson (1,878 comments) says:

    How is that chip designed, Jim? I’ll bet it the algorithm is implemented as a computer program in a source language and then translated into a hardware chip design just as your assembler or any other programming language is translated and optimised into CPU code. Then presumably, though I stand to be corrected on this, it is controlled and fed input and output is routed from it by other processor(s).

    It seems to me quite irrelevant whether computer code is interpreted, executed or hardwired. The essence of a computer program is that it is logic executed by hardware. How that is done is immaterial.

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  23. Monique Angel (291 comments) says:

    Monique, you couldn’t pack more misunderstanding in one post if you tried!

    1. NZers can still get patents in the US, if they want.
    Then why the fuck is the Govt legislating against software only patents? And how the fuck is that going to inspire NZers to get a patent in the US if they can’t get one in the homeland. Where will the funding come from?

    2. Copyright has nothing to do with patents
    No shit Sherlock. I was referring to the left wing bleat that software only technology should be able to be copy writable RATHER THAN PATENTABLE.
    3. If your patent is based on “trawling” for pre-existing ideas, it’s prior art and you can’t patent it.
    Yeah? How are you going to prove prior art if you’ve got a few puny examples of prior art and I hold a US patent?
    4. You can’t “sock” someone operating in NZ for violating a US patent.
    No. The New Zealand company will have all of 10 customers so who would give a shit.

    You obviously have no idea what you are talking about.
    You are all of about 20 years old be the sound of it. Me. I have 20 years experience in the industry.
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  24. Alan Wilkinson (1,878 comments) says:

    Monique, irrespective of your age and experience you come across as an intemperate twit.

    What the US chooses to do is beyond our control. So is fighting patent battles there for small NZ startups. Neither does it comprise the whole world despite the delusions of some of its inhabitants, obviously including you.

    Copyright and technical protections are practical and affordable for the vast majority of IT startups and innovators in this country. Negotiating a patent minefield in dozens of jurisdictions worldwide is not.

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  25. slijmbal (1,236 comments) says:

    @Jim & Alan

    I’m with Jim.

    Been writing programs for about 40 years and in IT for 30 odd.

    the whole point is hardware is just the kit and it always needs a software program. Hardware may have hardwired software but it is still software.

    I exclude various, fixed and extremely simple hardware setups that can do stuff like specific arithmetic in a fixed and specific manner.

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  26. Alan Wilkinson (1,878 comments) says:

    @slijmbal, I don’t understand how you are with Jim but restate my position as your own.

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  27. Jim (398 comments) says:

    Somewhere along the way the plot has been lost here.

    Some hardware needs software to function. That does not make the hardware a “a computer program” in any sense of the word.

    It is true that a lot of hardware has embedded software, and that is the purpose of the “as such” term that was originally added: to allow for such devices to be patented.

    The problem I attempted to highlight is that this allowance means that computer programs can still fall foul of these patents.

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  28. Jim (398 comments) says:

    Monique, I can’t make head or tail of your arguments.

    None of the startups I’ve been involved with held patents and that never stopped them being funded, growing, and being bought out by big software companies.

    In fact, almost all have been largely based on open-source software. About as far away from the concept of Intellectual Property as you can get. Discussions with VCs have never been about patents, more about being able to execute quickly and get customers.

    Most of my colleagues would see the desire to patent as a sign of weakness. In the software business it means you fear you cannot execute so want to try to stop the tide washing over you. As a startup device it is useless. Lawsuits are killers for funding – even if you are in the right.

    For big companies like Apple, Google patents are weapons. NZ does not have such companies.

    If you want to take a US-centric view then consider that the newly-formed USA did not honour patents or copyrights from Europe. Not until it pirated everything from the rest of world and started to have some real significant IP of it’s own then it decided patents and copyright are ok.

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  29. Alan Wilkinson (1,878 comments) says:

    @Jim, agree entirely with your response to Monique. Yep, I get your point and concern about possible loopholes. I still think though the definition of a computer program must include any hardware sequential logic implementation of any significant complexity.

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