[A2k] current situation with software patents in New Zealand

Erik Josefsson erik.hjalmar.josefsson at gmail.com
Sat Feb 9 00:14:38 PST 2013

I think the crux of the matter is not presence of your elements 1) and
2), but the phrase *"when loaded and executed"* (and its equivalents).

See "Council mess: Program claims (3)"


and the 55.200 hits on google/patents to that effect


The real question is if //whatever comes about// when [[something]] is
*"loaded and executed"* into and by //whatever thingie// needs
protection when the [[something]]  that is *"loaded and executed"*
already has protection.

As you know, wikipedia defines a software patent as being a "patent on
any *performance* of a computer realised by means of a computer program" :-)


On 02/08/2013 05:18 PM, Seth Johnson 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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