Whether you're a PC or a Mac, whether you like the Toronto Maple Leafs or the Montreal Canadiens, or whether you like proprietary code or open-source software, there's probably one thing on which we could all agree: this world of ours is big enough to accommodate all of it; well, with the exception of New Zealand, that is.

Apparently, legislators in the land of kiwi have drafted a new Patents Bill that asserts "a computer program is not a patentable invention" due to the fact that coding and developing software does not involve any tangible "inventive step" that isn't merely anything more than a simple evolution of an existing program.

Certainly, anyone that has been watching the patent fights that have threatened to bring down the entire Research In Motion (RIM) network, or have threatened to stop Microsoft from selling the latest edition of their Office suite, can't help but wonder if all of the various patent mills out there have been allowed to wield a little too much power. But at the same time, it does seem rather harsh and ego-deflating to assert that no software should ever be patented, arguing that there isn't a single programmer in the world who has ever incorporated a patentable "inventive step" into their software design.

International patent laws definitely need updating, but I can't help but worry that individuals in the open-source community may have had a little too much influence on various New Zealand parliamentarians who might not be as technically savvy as the people who might be vilifying proprietary software to them.

Thumbs Down for Software Patents in New Zealand

New Zealand Patents Bill 235-2: Repealing and Replacing the Patents Act of 1953



Thanks to Douglas Allen for bringing this article to our attention.

Presumeably you can still copyright code. That means that people still can't steal code, which as a developer of proprietary software is what you want protection from. This change just means people can't be sued for using a similiar idea or concept to someone else. It actually seems a much safer environment for developing proprietary software to me, as you can't have someone suddenly demanding royalities from you because a concept you've come up with is similiar to one they've got a patent on.

Patenting software concepts has always seemed as ridiculous to me as patenting a business process.

I remember a patent lawyer explaining to me that you could patent a stool, and then someone else could add a back to the stool, and patent the chair. The guy that patented the stool couldn't sell the chair, and the guy that created the chair couldn't sell the chair without permission from the guy that patented the stool.

That all seemed fair to me. But it seems to me, people are now looking at the chair and saying 'hey, someone could sit on it like Fonzie from Happy Days. I'm going to patent that' or 'someone could cross their legs while sitting on it, I'm going to patent that as well.' In the end, you get patents that really cover the original intended use of the product, and not any innovation itself. It's those types of patents that drive me nuts.

The legislation is complicated. Let's hope it's much more balanced that the impression much of the online press is giving it.

The patent system is definitely broken when it comes to software.  There are a few problems.  The problem with patent trolls is a real problem but could be resolved with better enforcement of current patent law.  As I understand it, a patent holder must make an effort to realize their patent or it's invalid.  Sitting around waiting for someone to come up with the same idea so you can sue them is not why we have patents.  The problem is that it's often more costly to challenge the patent than it is to just pay off the troll.  If there were an expedited and less expensive process to challenge patent validity, patent trolling wouldn't be profitable.

There's another problem that's more sticky, however.  A lot of corporations reward employees for coming up with patents.  These same employees may be working on open-source projects either on their own or on their employer's time.  It's happened that patents have been awarded to companies where the actual ideas were lifted from open source projects and were never created by the owner.

It seems to me that a truly novel process should be patentable.  For example, if you figure out a new way process for calculating the best route in a mapping program, that's a valid patent.  If patents are truly novel, not prior art, and are being realized, they should stand IMO.  Most of the software patents out there today fail to meet at least one of these conditions and are impeding technology and are a burden on the economy.

I remember a patent lawyer explaining to me that you could patent a stool, and

Sorry just needed to say first half of reading that response and I thought you were talking about poo ;-)

Presumeably you can still copyright code. That means that people still can't steal code, which as a developer of proprietary software is what you want protection from.

Unfortunately, that isn't true. When I asked my attorneys about this years ago, they told me that if someone takes your software and puts it up on one screen, then looking at that types something startlingly similar on another screen (e.g. same algorithm, but different method and variable names and spacing), then it's probably not a copyright violation.

So basically our industry is left with two ludicrously bad choices: A broken (and abused) patent system, and a toothless copyright system. Look no further than TSS:

http://www.theserverside.com/news/thread.tss?thread_id=43950

Peace,

Cameron Purdy | Oracle Coherence
http://coherence.oracle.com/

Software patents must die!

Can you name at least 10 cases where software patents did something good? Almost _all_ software that I'm using is based on ideas created before software patents really took off. And all of software patents I've seen so far are trivial.

So NZ really just admits the reality - there are almost zero non-obvious software patents.

And open vs. proprietary has nothing to do with it.

>>Can you name at least 10 cases where software patents did something good? 
>I've often heard of discussion of only allowing patents for something you've created, not something you've simply envisioned in a dream or a fantasy. Patent protection needs to be refined, but I'm still not sure if the way they are doing it under the equator is the right way to go.

It may be easier just to kill software patents then to create a good standard disallowing obvious patents.

Just kidding. Trying to create a little controversy. ;-)

Yes, the revolutionary 'one-click' idea. Who ever would have thought of that? Perhaps everybody? I heard someone patented a razor with 5 blades. What on earth could they do to top that? I sure wish I was smart enough to envision six blades, but alas, I am not.

There is a case in front of the US Supreme Court that is likely to be ruled on soon that might have a lot of bearing on software patents.

http://www.investors.com/NewsAndAnalysis/Article.aspx?id=529365

Interesting article. 

The author seem to confuse copyright and patents. Copyright is necessary for selling software, but patents are certainly not.
I can see the case for patents in industries where millions of dollars in research investments are needed for technological advancement - without patents nobody might do that. In software development this is certainly almost never the case. Here, patents are a latent omnipresent threat that hinders competition.

I don't think it's so much that these articles are confusing copyright, as much as simply ignoring its existence. :P

Yeah MP3 is the classic example there. There are more than about 30 patents on the MP3 algorithms. It's virtually impossible to write an MP3 codec that doesn't infringe on one of them and still make the audio sound ok.

When a company has to invest a bazillion dollars to develop a technology like that I sometimes find that a patent is warranted but when someone goes "Hey 1-click, what a concept, I'll patent that" the muscles in my throat that control regurgitation start convulsing.

You can't copyright an algorithm, only the code that implements it.

Patents in New Zealand have been used to protect established monopolies. There are virtually no New Zealand companies making money from royalties from software patents. On the other hand the threat of patents presents a chilling effect on the predominantly small software houses we have here.

When large multinationals can use patents to prevent adoption of open standards there is a serious problem. Take the OGG format for example; although the format was explicitly created to avoid patent infringement there are still claims from companies with submarine patents.

This decision in New Zealand will allow software companies to compete on the quality of their software rather than the size of their legal budgets. It will eliminate the risk of patent trolls earning a payday off those who actually do the work.

And importantly for the NZOSS it means that individuals who enjoy developing software need not be concerned about pre-emptive nuclear attack - aka patent litigation from large multinationals. 

Software has always been explicitly excluded from patent protection in the UK - as an extension of the principle that a mathematical equation or algorithm cannot be patented - only an invention that makes use of them (a file format, for instance, is patentable).

It's really quite interesting to see how this thread has evolved. What really started as a discussion of patents has become much more focussed on copyright, and protecting original works from unwanted pirating, which really wasn't a topic that was discussed in the original article, or even any of the articles to which this post linked.

I guess it just demonstrates that as programmers and software developers, we want to see our companies, or ourselves, be paid and rewarded for the work we do, which is essentially our copyright protection, while at the same time, if something does something a bit better, we don't want to stiffle that type of creativity or ingenuity.

I think that topic evolutions speaks well to the character of the people who are actually out there writing the software, or at the very least, the people posting to TheServerSide.com

I guess it just demonstrates that as programmers and software developers, we want to see our companies, or ourselves, be paid and rewarded for the work we do, which is essentially our copyright protection, while at the same time, if something does something a bit better, we don't want to stiffle that type of creativity or ingenuity.

I think it's important to recognize the idea behind patents.  Patents law doesn't exist to make sure people can profit from their ideas.  I think that a lot of people believe that to be the case.  The point of patents is to make sure people aren't discouraged from trying to create new inventions.  That is, if I think some big company will just steal my ideas, why bother going through the trouble of creating a company and losing my investment?

From that aspect I support the idea of software patents.  But what we have currently is nothing like that.  People are patenting things that other people have been doing for years (prior art), patenting trivially obvious ideas (not novel), and vague generalities.

I think the one-click is a perfect example of this.  The idea that it's even an invention is absurd.  People should not be able to patent ideas.  They should only be able to patent inventions.  I should be able to smoke a joint and file a patent for flying shoes if I don't have a specific approach for creating them.  Right now people are patenting ideas and if someone happens to realize them later in the future, they expect to get a huge payday primarily for having filed a form.

Thanks for a contrarian viewpoint there James. This was turning into a huge 'patent bashing' thread, so it's nice to have a bit of a defense of the patent laws.

It does seem that there is one thing we all agree upon - "On Click" is a moronic patent. Perhaps we should start a facebook group to protest it. :P If nothing else, the "One Click" patent gives us something to identify when we want to argue that sometimes "patents go too far."

Anyone out there, that isn't a lawyer for Amazon, that can post I good defense of the "One-Click" patent? No, I didn't think so.

Thanks for a contrarian viewpoint there James. This was turning into a huge 'patent bashing' thread, so it's nice to have a bit of a defense of the patent laws.

Just to be clear, I support the idea behind patents in general but I would prefer no software patents over the way things are currently.

One of the interest patent cases was when the inventors of the programmable computer (not von Neumann, contrary to popular belief) sued IBM for patent violation.  The patent was thrown out on the technicality of being filed too late.  The inventors got screwed by this for sure but computing would surely have been set back by decades if it had stood.  The theory of patents is to serve the common good and not to serve the individual.  It's unintuitive but important to understand.  It's possible for a patent to be thrown out simply because the invention is too important to restrict access to it.

The argument put forward by many in the open source community here was that the "inventive step" is in the algorithm not the code and as algorithms cannot be patented it follows that code should not be either. After all, software is the only art that can be both copyrighted and patented (in jurisdictions that allow patents)

A good way to think about this is the comparison with books/films and plots.  There are multiple books/films with the same plot - Hollywood depends on that.  But each book/film is copyrighted and so protected, whereas a book/film plot cannot be patented.  Software is just the same - an encoding of an underlying algorithm, which should not be patentable just as plots are unpatentable.

 

The argument put forward by many in the open source community here was that the "inventive step" is in the algorithm not the code and as algorithms cannot be patented it follows that code should not be either. After all, software is the only art that can be both copyrighted and patented (in jurisdictions that allow patents)

A good way to think about this is the comparison with books/films and plots.  There are multiple books/films with the same plot - Hollywood depends on that.  But each book/film is copyrighted and so protected, whereas a book/film plot cannot be patented.  Software is just the same - an encoding of an underlying algorithm, which should not be patentable just as plots are unpatentable.

In the US, algorithms are currently patentable as part of a process.  In other countries they are not.