[A2k] current situation with software patents in New Zealand

Susan Chalmers susan at internetnz.net.nz
Sun Feb 10 11:24:26 PST 2013


Thank you all who have contributed to this conversation - you have been
extremely helpful!

I am going to digest this information into a blog post, readable for the
general populace, and I'd be most appreciative if I could float it by those
who have responded in a separate email, off-list, for comment (ensuring
that my abstraction of the "as such" technical ramifications are accurately
translated into simpler messages).

Again, thank you.

Sincerely,
Susan


On Sat, Feb 9, 2013 at 5:18 AM, Seth Johnson <seth.p.johnson at gmail.com>wrote:

> 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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> > http://lists.keionline.org/mailman/listinfo/a2k_lists.keionline.org
>
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-- 
---

Susan Chalmers
Policy Lead

InternetNZ
PO Box 11-881
Manners St
Wellington 6142
+64 4 495 2339
susan at internetnz.net.nz



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