[A2k] no software patents in New Zealand

Seth Johnson seth.p.johnson at gmail.com
Sat Aug 31 10:22:26 PDT 2013


It is quite an improvement, but still game-able.  And it is all about
having game.

The phrasing doesn't have any necessary relationship to the forces of
nature reading, but the supplements may help steer it to something like it.

The phrasing actually specifically states that there can be a patentable
claim on a computer program as such -- just so long as the innovation is
all about the program.  This is open to either those who think some
mathematical discoveries are so innovative as to warrant patents, or those
who argue the rest of the doodad is just generic.

But this broken record scratches to life again to disagree with Gérald's
claim that there is no legal wording possible to draw the line.  It's easy
if you put the emphasis not on the empirical side, but the pure side: If
there's a general purpose logic processor in the device, and if there are
separate instructions provided to that general purpose logic processor,
whatever physical form they take, then those instructions are not covered
by the patent.  That's it, perfectly airtight.  What's plugged in "on the
other side" of the logic device could well be patentable, but the
instructions are pure because that's the nature of the processor.  The
proof is that in principle the same exact pure code could in theory
manipulate completely different devices.  That's exactly the same situation
as for math.  It would take artful code to demonstrate this physically, but
it can be done -- and this would be a very good exercise to undertake as a
way of illustrating the core nature of the problem.  The difference is all
about what's on what side of a pure logic processor.  There are other
issues, like what to do about claims that interfaces on a device are
patentable, but we would finally have the whole discussion proceed from the
right fundamentals with this framework.

In the meantime, the fight continues in other terms until the day comes
when the basic undeniable nature of the issue becomes undeniable.


Seth



On Fri, Aug 30, 2013 at 5:02 PM, "Gérald Sédrati-Dinet (Gibus)" <
gibus at april.org> wrote:

> Thanks Susan and Paul for your clarifications.
>
> Indeed, the clause:
>
>  "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"
>
>  can limit the "as such" loophole, just like the Aerotel test, or what
> the European Parliament voted in 2003 (but the whole law was rejected 2
> years later) by stating that to be considered as an invention, in the
> sense of the patent law, the application has to involve a new and
> inventive teaching about cause-effect relations in the use of
> controllable forces of nature.
>
> But what we've learned from European (or even US) experience, is there
> is no legal wording that can draw a 100% clear line between patentable
> and unpatentable innovations. Everything lies in the interpretation
> finally adopted by courts competent for patent enforcement/invalidation.
>
> Never ever give competence to an isolated specialized patent court,
> because you can be sure that it will interpret your shiny legal wording
> in a sense that will favor the patent microcosm.
>
> For what I've read, the NZ bill has been careful to not only propose
> some legal provisions, but also to point out the spirit of theses legal
> provisions, with also some examples, etc. I think this is one of the
> greatest advantage of this bill because it shows to interpreting courts
> what was the will of the legislator.
>
>
> Le 29/08/2013 12:24, Paul Matthews (IITP) a écrit :
> > Hi all,
> >
> > Definitely happy to answer any queries on this.
> >
> > In short, the potentially troublesome "as such" wording is still in the
> > legislation, however there are now additional clauses added that make it
> > clear that this is to be interpreted in as narrow a manner as possible.
> >
> > The problem with the wording in other jurisdictions (such as the EU) has
> > been the court's interpretation. In the absence of any elaboration,
> > patent lawyers have successfully argued (over time) for a broader and
> > broader interpretation until they reached a point where most software
> > patents are patentable. If this had remained on it's own, it's likely we
> > would have inherited European jurisprudence and ended up in the same
> boat.
> >
> > The UK courts established what's known as the Aerotel Test for software
> > patents that basically made it clear that software-implemented
> > "inventions" weren't considered inventions if the inventive step was
> > solely in software. Or to put it another way, a patent for something
> > wasn't excluded because it included software, unless the claimed
> > inventive step was just in the software (with other parts to stop claims
> > that a changed memory configuration, for instance, was the non-software
> > part). While the UK has started to move away from that (they share
> > patent rules with the EU, although often differ in interpretation), by
> > enshrining the test in law in NZ, we're ensuring that the narrowest
> > possible interpretation is taken.
> >
> > It's actually quite innovative how the law is worded. It gets around the
> > TRIPS requirement that all inventions in all fields of technology has to
> > be patentable by simply stating that computer programs are not
> > inventions. If it's not an invention it's not patentable, irrespective
> > of TRIPS.
> >
> > Hopefully that hasn't all muddied the waters further! The short version
> > is that software is not patentable, but embedded systems (where the
> > effect is outside the computer and the software is incidental) is
> > patentable. But the law is very specific that the loop holes that have
> > been used in other jurisdictions won't fly.
> >
> > Regards,
> >
> > *Paul Matthews* BSc, MIITP ITCP
> > Chief Executive | *Institute of IT Professionals* NZ
> >
> > *P* +64 4 473 1043 <tel:+64%204%20473%201043> * M* 021 705 212
> > <tel:021%20705%20212> * W* www.iitp.org.nz
> > <http://www.iitp.org.nz/> * T* @nzPaulM <http://twitter.com/nzPaulM>
> > *A:* Level 24, Grand Plimmer Tower, Gilmer Tce, Wellington NZ
> >
> > (Sent via iPad)
> >
> >
> > On 29/08/2013, at 1:16 PM, "Susan Chalmers" <susan at internetnz.net.nz
> > <mailto:susan at internetnz.net.nz>> wrote:
> >
> >> Dear Gérald, everyone,
> >>
> >> Many thanks for your email.
> >>
> >> "As such" does continue to reside in the language, but it is worth
> >> reading the provision in whole.
> >> The relevant text is in this Supplementary Order
> >> Paper:
> http://www.legislation.govt.nz/sop/government/2013/0237/latest/whole.html.
> >> The SOP revised the version of the Bill that you linked to. The text
> >> does provide the "Fisher & Paykel" exception as an illustration.
> >>
> >> While this language does not go as far towards wholesale exemption as
> >> was originally proposed, the native IT industry is very pleased with
> >> it on the balance because it effectively removes software from
> >> patentable subject matter in New Zealand.
> >>
> >> I've copied in Paul Matthews, the Chief Executive of New Zealand's
> >> Institute for IT Professionals. Paul has been a champion in this
> >> endeavour and I imagine he would be happy to provide you and the list
> >> with further detail.
> >>
> >> A press release from IITP on the subject can be found
> >> here:
> http://www.iitp.org.nz/news/archives/4922-IT_Professionals_welcome_passing_of_Patents_Bill
> >>
> >> Sincere regards,
> >> Susan
> >>
> >>
> >> On Thu, Aug 29, 2013 at 3:12 AM, "Gérald Sédrati-Dinet (Gibus)"
> >> <gibus at april.org <mailto:gibus at april.org>> wrote:
> >>
> >>     Dear Susan and all,
> >>
> >>     I've read today some press statements
> >>     (http://www.zdnet.com/new-zealand-bans-software-patents-7000019955/
> )
> >>     that NZ has finally banned software patents.
> >>
> >>     Reading the patent bill
> >>     <
> http://www.legislation.govt.nz/bill/government/2008/0235/latest/whole.html#DLM1419230
> >,
> >>     computer programs are simply excluded from patentability, without
> any
> >>     loopholes as the famous "as such" clause.
> >>
> >>     So this is really big news!
> >>
> >>     Can you confirm that the bill has been adopted with the text
> >>     linked above?
> >>
> >>     --
> >>     Gérald Sédrati-Dinet
> >>     http://pascontent.sedrati-dinet.net     http://www.april.org
> >>     http://www.unitary-patent.eu            http://laquadrature.net
> >>
> >>
> >>
> >>
> >> --
> >> ---
> >>
> >> Susan Chalmers
> >> Policy Lead
> >>
> >> InternetNZ
> >> PO Box 11-881
> >> Manners St
> >> Wellington 6142
> >> +64 4 495 2339
> >> susan at internetnz.net.nz <mailto:susan at internetnz.net.nz>
>
>
> --
> Gérald Sédrati-Dinet
> http://pascontent.sedrati-dinet.net     http://www.april.org
> http://www.unitary-patent.eu            http://laquadrature.net
>
> _______________________________________________
> A2k mailing list
> A2k at lists.keionline.org
> http://lists.keionline.org/mailman/listinfo/a2k_lists.keionline.org
>



More information about the A2k mailing list