
New Zealand bans some software patents - gcforky
http://www.zdnet.com/new-zealand-bans-software-patents-7000019955/
======
FOSSpatents
Not so fast. Spin doctoring is no substitute for substance.

As Caesar used to say, "fere libenter homines id quod volunt credunt" (people
are ready to believe what they want to be the case).

The fact of the matter is that New Zealand has passed a law with some
restrictive language, but this is far from abolition. Broad swaths of software
patents can still be granted.

Here's my more detailed take on it: [http://www.fosspatents.com/2013/08/new-
zealand-parliament-ad...](http://www.fosspatents.com/2013/08/new-zealand-
parliament-adopts-uk.html)

And this is what a publication read by patent lawyers says: [http://www.iam-
magazine.com/blog/Detail.aspx?g=96d4aeaf-dedf...](http://www.iam-
magazine.com/blog/Detail.aspx?g=96d4aeaf-dedf-4ab8-a1f6-f28e2ea1ba0d)

~~~
1010011010
Are you still getting paid by Oracle?

~~~
kvb
Is that relevant to the merits of his argument?

~~~
venus
Let's cut to the chase.

No-one has time to become an expert on absolutely everything. To some extent,
we have to choose who to listen to, and then trust that they are speaking
true. Anything else is completely unmanageable. So your argument, while
logically correct, is not applicable. In the real world, we don't take the sex
offender's word that our child is safe on its pure merits.

When someone with a long and vivid history of acting against the interests of
the community speaks, it is on them to overcome the prejudice against them,
not on us.

~~~
kvb
I don't get it. Let's stipulate that he is an Oracle puppet. Why would that
incentivize him to lie about what the bill actually covers? Regardless of his
incentives, is he wrong that not all software patents would be prevented under
this bill?

Disclosure: I'm a Microsoft employee, so I probably have some devious motives,
too.

~~~
venus
Do you know what a _heuristic_ is?

Basically, being an Oracle puppet is an extremely negative heuristic for being
a useful voice on anything related to software IP. Absent compelling evidence
to the contrary, I am inclined to ignore any and all opinions of said puppet.

And FWIW, being a Microsoft employee defending an Oracle stooge doesn't play
all that well either.

Isn't this all common sense?

~~~
Steko
So wait Matt Cutts being paid by Google makes him a puppet and we shouldn't
take him to be a useful voice on anything related to search?

~~~
mbesto
Matt Cutts is an _employee_ of Google and clearly speaks on behalf of Google's
search team. Not sure what your point is?

~~~
Steko
The point was that people who have financial interests can still provide
useful information for the community. Of course you knew what the point was
and decided to take us on a pedantic tangent.

Another point I could make is that analogies don't have to be perfect to be
useful.

Another point might be that the people making ad hominem attacks on FM aren't
actually adding anything constructive to the discussion while he did. In fact
his contribution to the thread added more than everyone elses' combined.

And while I don't really care for FM himself, there are many people who spin
and editorialize heavily that are still very much worth reading. If you're
interested at all in tech patents, he's one of them along with whatever ends
up replacing Groklaw.

~~~
mbesto
_The point was that people who have financial interests can still provide
useful information for the community._

I wasn't questioning that. I have no doubt the information he is articulating
is valuable, but who is benefiting more, us, himself or his client? Regardless
of how pedantic I'm being, your point is slightly flawed and should be called
out. I don't feel it's worth attributing merit to people's efforts without
understanding their behavior first.

There financial interests are _very_ different and thus the information they
create can lean one way or another. One is a paid consultant and another is a
full time salaried employee. The one makes more money _directly_ by benefiting
the client (Mueller) and the other one makes more by equity and control
(Cutts).

When it comes to money, people are largely motivated by 3 things: control,
equity, and cash (which all subsequently translate quite nicely into
money/wealth) however, each one can manifest itself very differently. Someone
who makes their living by advising clients has a very _direct_ interest in
cash, so it's more obvious that his/her behavior is in line with ensuring that
cash goes into the bank first and foremost.

------
cromwellian
Software patents are an abomination. I could stomach copyright on software,
because at least one is still permitted independent implementation and
expression. I can't copy your code, but I can rewrite it.

Software patents on the other hand put a fence around ideas themselves. You
can't draw a cursor using XOR by implementing it yourself, period, for 20
years.

The patent system is deeply broken, and it doesn't even stop big players
anyway. Really, Apple successfully sued Samsung, did it stop Samsung from
taking over half the market? Does $1 billion in fines really matter or Apple
or Samsung over the long term? By the time these cases are settled, it has
already played out in the consumer marketplace anyway. You can't defeat
consumer success with patent attacks. Microsoft's Android revenue shakedown
won't replace the death of Windows if it happens, and it won't make Windows
Phone/Surface RT a winner.

It's a game only lawyers, IP trolls, or paid industry shills love.

~~~
TylerE
I disagree with this sort of extremism. What should not be patentable are
basic "way of doing business" patents.

On the other hand, if someone slaves away for years and develops a truly new
and unique compression technique, I don't see why that shouldn't be
patentable. How is that any different from, say, a steel foundry developing a
new unique alloy?

~~~
skybrian
What's the difference between that and a mathematician slaving away for years
to solve a hard problem? And yet, we don't grant patents on math.

One person's time isn't that big an investment (relatively speaking) and
funding is available.

~~~
TylerE
Because you're patenting a concrete implementation.

~~~
skybrian
That's not as black and white as it seems. An implementation of a compression
algorithm is typically a particular library written in a particular computer
language. A specification of a compression algorithm is typically described in
a specification document such as an RFC. We don't call an RFC an
implementation.

~~~
TylerE
Some reason, if someone comes up with a highly valuable proprietary algorithm,
I don't seem them issuing an RFC on it.

~~~
skybrian
Now you're nitpicking. The only reason I mentioned RPC's is as an well-known
example of a specification, to contrast that with a concrete implementation.

My point is that an algorithm is more general than any particular
implementation. They aren't concrete. They're abstract. (And of course if
patents only covered one concrete implementation then nobody would bother
getting them.)

~~~
TylerE
I don't think it's nitpicky. Often the bulk of the work is implementing a
given algorithm efficiently, instead of just writing a formal paper with lots
of hand-wavy "a sufficiently smart compiler..."

~~~
nitrogen
But that's not innovation or an inventive step, that's just hard labor, sweat
of the brow.

"Except, of course, patents aren't about the sweat of your brow and how much
work you put into something." \-
[http://www.techdirt.com/articles/20130415/16444322713/suprem...](http://www.techdirt.com/articles/20130415/16444322713/supreme-
court-seems-skeptical-as-myriad-claims-gene-patents-should-exist-because-it-
put-lot-work-into-finding-them.shtml)

------
ataggart
As Orwell wrote, "the English language ... becomes ugly and inaccurate because
our thoughts are foolish, but the slovenliness of our language makes it easier
for us to have foolish thoughts."

Considering that patents are entirely a government creation, "ban" or "outlaw"
does not apply, for such language treats patents as something apart from the
state. Perhaps "stops issuing" would be more accurate, but it's not clear from
the article whether that's actually the case.

~~~
foobarbazqux
I don't know. Every legal concept is entirely the government's creation,
including both physical and intellectual property, so I'm not sure it's worth
quibbling about that part.

~~~
humanrebar
While intellectual property is almost entirely a legal creation, government is
not necessary for property to exist. Indeed, John Locke considered property to
be a natural right along with life and liberty.

~~~
foobarbazqux
Sorry, if it's you in the forest with a shotgun defending your property in a
libertarian utopia, you're the government.

~~~
homosaur
I get what you're aiming at but if you're holding the shotgun, that's not
government. Government is when I cede the right to protect my forest with a
shotgun in order that a government entity will do it for me. We give
government a monopoly on force under the agreement that I generally should not
be shooting people to protect my rights.

~~~
orclev
That's not entirely true, at least in the United States. That's part of the
purpose of the 2nd amendment. We cede _some_ of our rights to use force to the
government, but things like Castle Doctrine and the 2nd amendment mean we also
retain those rights in specific circumstances.

Another aspect of the 2nd amendment people often overlook (particularly gun
control advocates) was that it was originally intended as a check to the power
of the army. The idea being that should the government ever try to use the
military to suppress the public, that an armed public would be able to fight
back and presumably being bigger than the military, win. That theory has been
greatly eroded in the last 70 years or so by the increasingly large gap
between the weapons the military has access to and what the public has access
to. Back when the constitution was drafted a rifle was a rifle was a rifle,
and 200 soldiers versus 1000 citizens all armed with rifles, the citizens
would likely win. These days with the military having tanks and jets and
nightvision and all manner of other advanced weapons (including the much
debated fully automatic rifles) means that your average group of citizens
wouldn't stand a chance against the military in serious armed conflict.

~~~
Karunamon
>your average group of citizens wouldn't stand a chance against the military
in serious armed conflict

I disagree with this - traditionally the US military hasn't fared very well in
guerrilla warfare scenarios. Look at the number of deaths out in the middle
east - fighting in city streets, that kind of thing.

I'd also wager that if the military was used against the populace, a great
deal of the military would defect out of principle. So not only do you have an
armed public in unfavorable conditions, our hypothetical evil government also
has an unknown number of traitors in the ranks.

That leaves more indiscriminate options (bombs of various flavors) - and if
things ever got that bad, we'd probably have other countries getting involved
and even more defection.

In short, it's not near as simple as "government has tanks, therefore
government wins".

------
lifeisstillgood
Very roughly - if the innovation to be patented (ie the software) is used to
improve the operation of the hardware then it is patentable. So buffering code
in a HDD chip is presumably patentable (-ed). However if its a new way to
display email - probably not. Not a clear win, and apparently similar to UK
case law.

(Cribbing off FOSSPatents links)

~~~
FOSSpatents
Yes, European-style "as such" exclusion, a bit clarified but still the same
basic idea. Lexology writes this about today's decision:
[http://www.lexology.com/library/detail.aspx?g=b966049f-14d9-...](http://www.lexology.com/library/detail.aspx?g=b966049f-14d9-466c-86d0-70a632dd7a66)

"The computer program exclusion is the subject of two governmental
supplementary order papers (SOPs). Government SOP 120 introduces a European-
style 'as such' exclusion that is considered to be more consistent with New
Zealand's international obligations and precedents. More recent SOP 237
introduces several additional new clauses intended to clarify the meaning of
the term 'as such'."

------
nh
US has banned 'software patents' long time ago. However, you can still patent
a software being performed by a processor or computer, which then becomes
'hardware'. NZ has now caught up with US. It is not what you think it is.

~~~
dangrossman
Merely being performed by a computer does not make software patentable in NZ
under this new law. The inventive step has to involve the hardware to be
eligible. They did just make a broad swath of software inventions non-
patentable.

~~~
betterunix
I suspect that people will start writing their patent claims like this:

"A method of representing numbers as binary strings in the registers of a CPU,
and manipulating those registers such that the output is the representation of
the sum of the input numbers."

That is what happened in America when we "banned" math^H^H^H^Hsoftware
patents. Software itself is not patentable, but the use of a machine to
execute specific software is. So the NZ equivalent of "on a computer" will be
"manipulating CPU registers" or some similar nonsense.

------
klaut
I am really impressed lately with New Zealand (it started with this MP speech
[http://www.youtube.com/watch?v=AfSGOK5jC9I](http://www.youtube.com/watch?v=AfSGOK5jC9I)).

Finally a country that is trying to correct the nonsense that are software
patents.

~~~
mkingston
Kiwi here. As another commenter mentioned, don't be. Overall, I think things
are going downhill. The New Zealand Law Society recently reported to the UN
Human Rights Council indicating that we've passed a number of laws recently
that are in breach of human rights.

\- We've very recently passed an odious bill to legitimise spying on NZ
citizens.

\- We've recently passed a bill that cannot cannot be challenged in court.
(IANAL, don't ask me how this can be the case).

\- We've recently passed a bill (copyright infringement) that presumes guilt.

The report identifies more:
[http://www.lawsociety.org.nz/__data/assets/pdf_file/0006/685...](http://www.lawsociety.org.nz/__data/assets/pdf_file/0006/68541/United-
Nations,-Universal-Periodic-Review-17-6-13.pdf)

In 2010 many New Zealanders staged a huge protest against mining conservation
land (owned by the government, accessible to everyone). The government stood
down. Yesterday I discovered permits for mining exploration have been granted
on conservation land. Technically, this is land that was not under explicit
discussion in 2010, but it unquestionably violates the spirit of the protests.
[http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&o...](http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=11115354)
[http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objecti...](http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10642083)

We're one of the few western democracies that hasn't banned or restricted
shark finning. We'd rather have an estimated NZD 6m/yr (IIRC). We'll have a
few million dollars instead of an entire species (Maui's dolphin).

Another shameful example of our PM in action:
[http://www.youtube.com/watch?v=lmF5b_t3PjA](http://www.youtube.com/watch?v=lmF5b_t3PjA)

That's all I can think of for now. Sorry to burst your NZ bubble.

~~~
mkingston
Upon re-reading my comment, I should probably clarify: the government _backed_
down on mining conservation land.

------
cpursley
Good news. NZ is already in the top-5 economically free countries while still
maintaining a respectable social safety. And a couple SaaS heavyweights. Plus,
no snakes.

[http://www.heritage.org/index/ranking](http://www.heritage.org/index/ranking)

~~~
jbooth
The top 2 free-est counties on that list are run by generally benevolent but
completely autocratic governments.

~~~
cpursley
But NZ is not. That's why it's appealing. Seems like a very sensible place to
me.

------
timje1
The real test of this will be if software companies flood to New Zealand to
tinker to their hearts content without fear of litigation... or if they flee
NZ for fear of invalidating any patents they could have brought on their
upcoming software.

I'd like to be able to say it will be the former, but I bet corporate lawyers
will be pushing for the latter (if only out of a sense of self-preservation).

~~~
cLeEOGPw
If the product is created in NZ that uses technology patented in US for
example, would it still be legal for them to do business in US, like offering
services?

~~~
lrem
No. But then, is selling software over a .nz web site to an US resident doing
software in NZ or US?

~~~
NickNameNick
That depends on who is suing you, and where they file.

I remember a decision from a few years ago that said something to the effect
that any activity that involved transmission of data through the US could be
interpreted as having happened in the US, even if the computers, their owners,
and operators all resided outside the US.

------
lettergram
Country wide spying efforts, but no software patents issues. You win some you
lose some I guess.

~~~
lostlogin
I cc the odd email to the prime minister and add a line saying that I've done
this to save him asking to see it. His time is valuable.

------
bentoner
Have they banned them like Europe has, or have they actually banned them?

~~~
FOSSpatents
They say they've adopted UK case law, which they claim is more restrictive
than the overall European practice, but even under UK rules, hundreds of
thousands of European software patents are valid. HTC challenged four Apple
software patents and claimed in each case that the invention was not
patentable because it was a computer program "as such" (today's New Zealand
bill also excludes only patents on programs "as such"), and succeeded on only
one of them, and even that one was overturned on appeal.

For further detail see the link in my first post to this thread in which I
warn people against believing what they hope to be the case just because it
makes them feel good, no matter how wrong it may be.

------
nawitus
Many countries have "banned" software patents. "EU patents" have also "banned"
software patents, but they pass thousands of them every year.

------
devx
Wow. Despite all the lobbying, apparently democracy still works in some
countries.

~~~
16s
As more and more people write code and become technically literate, I think
we'll see lots of this sort of thing. Once the majority of normal people "get
it" then it's all down hill for those trying to control ideas.

~~~
devx
The fact that it took them 2 years to do it with VP8...Both VP8 and Hangouts
were launched a long time ago.

------
appleflaxen
Wow; go New Zealand.

First the sanity with due process in the Kim Dotcom case, and now this.

~~~
xlevus
Flipside: GCSB bill.

~~~
NickNameNick
And asset sales, and the search and surveillance act, and...

------
Vektorweg
"New Zealand Parliament adopts UK approach to software patents, allows broad
swaths of them" \- [http://www.fosspatents.com/2013/08/new-zealand-parliament-
ad...](http://www.fosspatents.com/2013/08/new-zealand-parliament-adopts-
uk.html)

------
consider_this
If an idea is truly novel and valuable to the marketplace no patent is needed
because the novelty itself provides ample time for you to 'recover' your
investment.

Either no patents or very short patents[<=12 months for anything] is a basic
requirement for a progressive society.

~~~
marcosdumay
The problem is that you can neither get a patent granted nor sue somebody in
12 months.

We need faster governments.

------
logn
Are there any good articles about how people in countries which allow software
patents can benefit from this New Zealand body of law, such as incorporating
as a New Zealand company and avoiding US jurisdiction for patent lawsuits?

~~~
marcosdumay
If you want to sell your software to US people (who doesn't?), you'll have to
deal with software patents, whatever local laws say.

------
please_advise
Here is a question for the lawyers out there (which I am not): would it be
possible to conceive a legal framework somewhat similar in spirit to the GPL,
but with the goal of making any patent relying on it free of charge, ie. such
that a patent delivered under those terms would be free of use, but also
impose the same terms to any patent building up on its content?

------
throwaway1979
I'm glad this happened. For things like copyright, I thought there were
international conventions - countries that were lax were hounded by others
diplomatically. Is this not the case for patents?

~~~
FOSSpatents
You're right on. There's a WTO treaty on the Trade-related Aspects of
Intellectual Property Rights (TRIPS), and it requires patents to be available
in all fields of technology. See TRIPS Art. 27:
[http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm](http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm)

That's probably part of the reason why New Zealand did't _actually_ ban
software patents today. For more information on why today's bill is not
tantamount to the abolition of software patents, see my other comments on this
thread.

------
16s
Would it be possible for devs and small companies in other countries to take
advantage of New Zealand laws without actually being there?

~~~
cpursley
Wondering the same thing. What would it take to set up an equivalent of an LLC
there to hold the IP of a saas business? And would Americans be able to do a
tax pass-through (no or limited NZ tax liability and no change in US tax
situation).

Keeping the software company in a NZ trust and using that to own a US LLC (for
US operations) might be a good way to minimize IP liability.

------
shmerl
This is great. Hopefully crooked lawyers will be prevented from coming up with
workarounds how it happens in Europe.

------
DigitalSea
Finally. A country gets it. Hell will freeze over before a country like the
United States would pass such a bill.

------
alien3d
So i need to move New Zealand for development software.. Any software
developer from New Zealand ??

------
crncosta
I am really glad this happened and hope other countries takes this as example.

------
garry420
why ?

------
Qantourisc
Victory lap!

------
forlorn
Finally!

