New Zealand kills off software patents while experts question validity

It’s hardly surprising to learn that computing is a billion-dollar industry, and that patents have a part to play in this. In New Zealand, they no longer have that part to play – a new bill states, “A computer program is not a patentable invention.”

For advocates of free and open-source software, this is a major victory. New Zealand is hardly a massive country, but it sets a precedent that could be followed elsewhere in the world.

The bill, which passed on Wednesday, can be read on the government’s website. However, it comes under fire from intellectual property experts who are unsure of how it will work in practice; there are exceptions in the bill for when a patent can be granted.

David Macaskill, an expert from New Zealand IP law firm James & Wells, states that the Intellectual Property Office of New Zealand can now examine patent applications to determine whether they are worthy or not. Those of “dubious inventiveness” are less likely to receive any coverage.

The new bill also changes how patents are treated, moving to a “balance of probabilities”. Previously, the system focused on giving the patentee “the benefit of the doubt”.

The entire scenario is highly unusual; it is a big shake-up for the generally well-defined realm of intellectual property, patents, and legal disputes. For now, it seems like it could stifle the activities of ‘patent trolls’, though only time will tell.

Source: VentureBeat & ZDNet | Image via TechRights.org

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19 Comments

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For it to be enforced, wouldn't patents on hardware capable of executing and carrying out those same(sort of) instructions, that a piece of software would perhaps perform, also need to have similar treatment? Otherwise I see big company's with fabrication abilities having an edge... ?

A computer program has never been a patentable invention in the US. The problem patents are patenting obvious mechanics of how UIs work or how devices are designed.

It would be a programmer's dream, as all software would need to be bespoke! You could get awesome custom warez though, but nothing would work with anything else, and Nana would be on the phone every two hours asking how to do things. Instead of every three hours.

Brian Miller said,
Question for everyone:
What would the world look like if software patents were always unlawful?

It would be easier for small devs to build something without worry too much about patents.

Right now it's almost technically impossible to build a new application without breaking at least one patent. The situation is that ridiculous. Luckily not all companies enforce their patents on small devs (lot of them simply use those patents to protect themselves from patent trolls).

But the patent trolls are there waiting for the next big app from a small dev to sue him over a frivolous patent. Often the legitimity of the patent is questionable but the small dev doesn't have enough money to defend himself and in the end it's easier to simply play the patent troll.

"New Zealand is hardly a massive country" - it totally IS though! Well, massive as in "massive bro", and "chur, mean", and other words that colloquialise to mean "great"

The problem with patents is that they protect concepts and ideas - not concrete property. Why should anyone be prohibited to use ideas that they have developed independently from others?

Patents are just arbitrary privileges given by the government in the name of self-interest beyond what is sane or just. When government does something then someone wins at the expense of another. In this case the inventer and entrepreneur with revolutionizing ideas that someone else "own" because of the State.

I do however think that banning it is wrong. It should be deregulated as that would default to let people and organizations negotiate it voluntarily and peacefully.

What you claim you want has failed miserably here, it doesn't work and never will, ideas are just that ideas, you can't "own" an idea, you can own a method of implementing and copyright it, but patents on ideas are stupid

The whole idea of "owning" an idea or an expression of an idea is completely ridiculous to me.

It completely violates the idea of property rights; If somebody owns an idea then I am prohibited, by law, from reproducing that idea with my own materials and labour, whether it's creating a replica of a physical model, a CD or a mathematically equivalent (but distinct, code-wise) algorithm or program.

The fact that copyright, patents, design rights, trade dress, plant breeders' rights, database rights and trade secrets (amongst other things) are considered "intellectual property" is downright offensive to me.

M2Ys4U said,
The whole idea of "owning" an idea or an expression of an idea is completely ridiculous to me.

It completely violates the idea of property rights; If somebody owns an idea then I am prohibited, by law, from reproducing that idea with my own materials and labour, whether it's creating a replica of a physical model, a CD or a mathematically equivalent (but distinct, code-wise) algorithm or program.

The fact that copyright, patents, design rights, trade dress, plant breeders' rights, database rights and trade secrets (amongst other things) are considered "intellectual property" is downright offensive to me.

You're missing the entire purpose of patents. They were devised as a method to encourage the sharing of information. To be granted a patent you must describe, in detail, what it is and how it works. The reward is a temporary monopoly on that information. Think of it as calling "dibs" on a widget.

Sure, the patent system is currently being abused but it doesn't mean it can't be fixed. Mainly, drastically reduce the protection period to say, five years? There still needs to be some solid benefit or else these larger companies wouldn't share the information on how their new ideas work.

pack34 said,

You're missing the entire purpose of patents. They were devised as a method to encourage the sharing of information. To be granted a patent you must describe, in detail, what it is and how it works. The reward is a temporary monopoly on that information. Think of it as calling "dibs" on a widget.

Sure, the patent system is currently being abused but it doesn't mean it can't be fixed. Mainly, drastically reduce the protection period to say, five years? There still needs to be some solid benefit or else these larger companies wouldn't share the information on how their new ideas work.

In fact the whole issue could be in part solved by simply respecting the current laws. Too much patents are given in computing for obvious ideas lot of people thought about but could not realise because the tech was not there and nobody thought about patenting them because they were obvious to anyone with half a brain and usually you can't patent those. Too much patents are also given for ideas that simply reproduce real life concept digitally (in those case the ideas are old like email or chat).

There's countless of patents in computer for terribly obvious ideas. Technically when an idea is obvious you can't patent it.

can now examine patent applications to determine whether they are worthy or not

What did this lot do (and receive their paychecks for) before this then?

The real issue is the problem of Patent trolls and patents that just do not make any sense because of commonality. Same applies to copyright laws where some decision a just dumb.

Certainly if a working company who researches and manufactures some product that employs unique features, then there is justification to protect that process for a period of time.

The current laws though really do need a rework.