[A2k] current situation with software patents in New Zealand

Seth Johnson seth.p.johnson at gmail.com
Fri Feb 8 08:18:07 PST 2013


A very simple solution, if it can be introduced and moved forward,
would be to have patent applicants include a statement that there are
no instructions provided to a general purpose logic processor in the
claimed invention, and/or if there are, the patent does not cover
those.

The simplest, clearest way to determine whether software is being
claimed in a patent is to ask:

1) Is there a general purpose logic processor in the invention?
2) Are there separate instructions being provided to the logic
processor for execution?

If so, then those instructions are not covered by the patent.  This is
regardless of the physical form of the instructions: they are separate
from the processor, and being provided to it for sequential execution.
 They are thus software.

More to the point: identifying these two components makes the whole
case for not patenting the software, because instructions provided to
a logic processor are inherently pure logic.

Then the rest is all about what other parts of the whole meet the
tests.  Just set this part aside first, then begin working through the
rest of the issues (and there are plenty, like user interface
"patents").  It's just really good to set this basis in principle
first.

And I would think this would be a very easy case to make to lawmakers.


Seth



On Thu, Feb 7, 2013 at 3:31 PM, "Gérald Sédrati-Dinet (Gibus)"
<gibus at april.org> wrote:
> Le 06/02/2013 00:21, Susan Chalmers a écrit :
>> Greetings, all.
>>
>> For those who are interested in software patents, the below article
>> provides a good overview of the current situation in New Zealand. At one
>> point<http://legislation.govt.nz/bill/government/2008/0235/latest/DLM1419230.html?search=ts_bill_patents+bill_resel_25_h&p=1>,
>> in the proposed Patents Bill (still a Bill), computer programmes were
>> expressly excluded. The Minister of Commerce, subsequently issued a
>> Supplementary Order Paper introducing language that would make that express
>> exclusion less, well, express.
>>
>> 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"
>>
>> http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10863604
>>
>> InternetNZ responded with like-minded organisations in a letter (attached
>> herewith) proposing a nuanced version of the amended language.
>>
>> I'd particularly interested in hearing from anyone on this list who has
>> experience in this aspect of EU patent law. Please feel free to respond off
>> list.
>
> Dear Susan,
>
> As underlined in Glynn Moody's blog post, there is no doubt that you are
> right to oppose to a "as such" wording for the exclusion of software
> from patentability.
>
> Indeed, this is how EPO has granted tens of thousands of software
> patents, in violation of the spirit and the letter of European patent
> law. What is also important is this "as such" clause has been
> interpreted by the EPO to mean "that has no technical effects".
> Technical effects, as interpreted by the EPO includes data retrieval,
> reaction to a user input, or even "writing using pen and paper" (sic!).
> And this interpretation is on the way to prevail worldwide. There was a
> good job undertaken by Brad Sherman for the WIPO to show how software is
> patentable in various countries and regions (incl. a good summary for
> NZ, confirming what is going on now):
> <http://www.wipo.int/edocs/mdocs/scp/en/scp_15/scp_15_3-annex2.pdf>. And
> it is clear from this study that the EPO's doctrine is spreading
> everywhere. US patent doctrine is judged too patent friendly, and Europe
> is presented as a balanced patent system for software.
>
> This is false, and you are all the most right to fight for an
> implementation of the "as such" trick in NZ.
>
> I haven't had time yet to read in details the proposed solution, but
> what I've understood is that it is proposed to replace the "as such"
> clause by a distinction between "regular" software and "embedded
> computer program" (found on <http://no.softwarepatents.org.nz/>).
>
> I'm afraid this would also be a very bad solution. We have had such
> discussions some years ago in Europe, and the conclusion was that it
> doesn't matter whether the software is embedded (for instance, in a
> circuit) or run on a general-purpose computer. The patent is covering
> the same thing in both case and would be as harmful either embedded or
> not. This is why, for instance, that RMS prefers not to talk about
> software patent (the distinction software/hardware is meaningless) but
> to patent on computing ideas. Whatever implementation you have for a
> computing idea it is always a processing of date, mathematics, mental
> acts, etc.
>
> The solution that was chosen for fighting software patents in Europe was
> to define the limits of patentability with regard to the "controllable
> forces of nature". As Jozef as pointed, this was still our proposition
> in the on-going battle on the unitary patent (nope it's not over ;) This
> was recognized by German (which is dominant in Europe) patent case law.
> So it was easier to make the "controllable forces of nature" solution
> accepted, for eg. by the European Parliament (not in 2012 though).
>
> Other very good solutions have been proposed, for eg. taking a semiotics
> approach (http://www.groklaw.net/article.php?story=20121129053154687),
> stating that "As long as the claimed process manipulates symbols their
> meanings will never confer patent eligibility."
> (http://www.groklaw.net/article.php?story=20121129053154687). This is in
> the US context in order to define the "abstractness" referred to by the
> US Supreme Court.
>
> I hope these solutions can help you, and I really want to insist that
> the "embedded" distinction is quite harmful.
>
>
> --
> Gérald Sédrati-Dinet
> http://www.unitary-patent.eu/      http://www.april.org/
> http://www.brevet-unitaire.eu/     http://laquadrature.net/
>
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