[A2k] current situation with software patents in New Zealand

"Gérald Sédrati-Dinet (Gibus)" gibus at april.org
Thu Feb 7 12:31:41 PST 2013

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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