

New Zealand just abolished software patents. Here’s why we should, too - Libertatea
http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/29/new-zealand-just-abolished-software-patents-heres-why-we-should-too/?tid=rssfeed

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tzs
Well, they abolished them the same way the EU did many many years ago. There
have been tens of thousands of software patents granted in Europe since they
were abolished there.

Like the EU, they are banning patents on computer programs "as such". A very
large fraction of software patents are not patents on computer programs "as
such".

------
xvedejas
Well, there's another issue with software patents that causes me to dislike
them. At least from the point of view of the free software world, there are
often fears that coding some bit of free software will run into a patent that
some large company owns and cause problems for that project. It just seems
unreasonable from the mindset that you're coding something for the benefit of
the world that the world will try to prevent you from using that idea — albeit
independently formulated. Regardless of whether these patents work for
companies, they certainly don't work for open source software.

------
cromwellian
I doubt this will be fixed in my lifetime, there are too many entrenched
interests. Once the government grants new kinds of property rights, it's very
hard to curtail them.

------
throwawaykf
The article is one of the few that talks about the GAO report on patent
litigation. You'd think it would be all over the media. Somehow it isn't.

An abstract of the report from the GAO website itself, worth reading as a
TL;DR:
[http://www.gao.gov/products/GAO-13-465](http://www.gao.gov/products/GAO-13-465)

The really interesting news here is that the report found that "troll" related
lawsuits are actually a minority of patent litigation, somewhere around 20%,
and that is despite a sharp rise in the recent years.

The EFF [1] makes a good point that this data does not look at non-litigation
trolling preying on small entities and unrelated businesses, a la Lodsys, that
extract payment simply through the threat of litigation. (Note that the EFF
headline is also not the best representation of the report.)

However, such operations have typically attracted media attention. There have
been many, but the first I recall reading was of Fotomedia, who sued anyone
that had photo sharing on their website. That was a miniscule operation
compared to Lodsys, yet it made news. (Ars Technica tracks a few such trolls.
It has not yet covered this report, even though the OP has been a regular Ars
contributor.) For now, I find it hard to believe that there are enough of
these operations to change the GAOs conclusions.

The other interesting observations are:

1\. the rise in litigation, troll-related or otherwise, is attributed in part
to the recent changes in patent law, specifically, the AIA. What this report,
and many other studies in the area, miss is that even older decisions [2, 3]
have had similar effects, something I have previously pointed out using
another throwaway account.

2\. companies are realizing patents are something that can be monetized rather
than just being used to protect ideas.

The OP glosses over all this and talks about vagueness in software patents,
which is something I partially agree with. (Specifically, I believe patents
being issued after the ~2004 - 2005 have much narrower claims.) However, it's
not something that is endemic to software patents. The Doctrine of Equivalents
[4] means that any element in any claim of any patent can be interpreted to
cover other ways to implement it as long as it performs the same function. For
instance, if the claim mentions using email, but somebody does it using SMS,
it may still infringe if the main function is sending a message or notifying a
user. However this, in turn works against the patentee when prosecuting
patents at the USPTO, because examiners then apply the "broadest reasonable"
interpretation of claims to find more and more prior art.

1\. [https://www.eff.org/deeplinks/2013/08/gao-study-confirms-
obv...](https://www.eff.org/deeplinks/2013/08/gao-study-confirms-obvious-bad-
patents-lead-trolls)

2\. Michael Donovan, "The Impact of MedImmune, Inc. v. Genentech, Inc.and Its
Progeny on Technology Licensing,"
[http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?art...](http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1038&context=jbel)

3\. Sara Jeruss, Robin Feldman, Joshua H. Walker, "The America Invents Act
500: Effects of Patent Monetization Entities on US Litigation,"
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158455](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158455)

4\.
[http://en.wikipedia.org/wiki/Doctrine_of_equivalents](http://en.wikipedia.org/wiki/Doctrine_of_equivalents)

~~~
ims
> You'd think it would be all over the media.

Don't get me wrong -- I care about this issue, but I'm curious why would you
expect people outside the tech industry to care much?

~~~
throwawaykf
Sorry, I should have said "tech media". Every "tech journalist" and their
grandmother out there likes to write about patent trolls, and calling for the
government to make changes.

And here we have a study by a branch of the US Congress, the one entity that,
based on the constitution, can make sweeping changes to the patent system. The
Congress' investigative branch went off to study the problem and essentially
said trolls are not a big problem.

But as far as tech media patent-related reporting goes, this one has gone nigh
unmentioned. Even though software patents are specifically called out. Why?

My suspicion is that the lack of attention is mostly because the study does
not gel with the perception the tech media is trying to sell, that trolls are
a huge burden on the economy. And typically, these complaints are made by
practicing companies who, if one were to be uncharitable, one could say are
actually doing most of the litigation [1].

To me, the signs point to a submarine [2]. And if that seems far-fetched,
consider this:

You ever hear of a "study" that claimed trolls cost the economy something like
29 _billion_ (pinkie to corner of mouth) dollars a year? A number that gets
mentioned in any article about trolls or patents in general? Well, last year
multiple sources poked holes all over it [3, 4, 5, 6].

Would you like to guess how many tech media outlets reported about that?

Now, would you also like to guess how many tech media outlets continue to harp
on about the debunked 29 billion number every chance they get?

1\.
[http://seattletimes.com/html/businesstechnology/2021696607_g...](http://seattletimes.com/html/businesstechnology/2021696607_gaopatenttrollsxml.html)

2\.
[http://www.paulgraham.com/submarine.html](http://www.paulgraham.com/submarine.html)

3\.
[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117421](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117421)

4\. [http://blog.patentology.com.au/2012/06/29-billion-us-
troll-t...](http://blog.patentology.com.au/2012/06/29-billion-us-troll-tax-or-
just-another.html)

5\. (Pay-/Registration-walled) [http://www.iam-
magazine.com/blog/Detail.aspx?g=454c1adc-52c3...](http://www.iam-
magazine.com/blog/Detail.aspx?g=454c1adc-52c3-4c2d-8981-e4716361f219)

6\. (A recap of the previous 3 references, as well as highlighting the sources
of funding for the authors of the "study")
[http://gametimeip.com/2012/07/30/patent-scholars-
challenge-b...](http://gametimeip.com/2012/07/30/patent-scholars-challenge-
bessen-meurers-bogus-29-b-npe-costs-figure/)

~~~
batgaijin
I don't buy it. Who the fuck wants patents on not just well researched
algorithms but something as simple as the doubly linked list? Even though I
haven't seen that used in court, for good reason, I still can't see that and
other signs as symptomatic of something that needs to be taken behind a shed.

Who profits from software patents? Who gets held back?

Why does the narrative matter at all? Don't you remember the fucking shit
throwing contest over pinch to zoom?

What drugs are you taking. Are they legal?

~~~
throwawaykf
_> Who profits from software patents? Who gets held back?_

That is the only question that matters (beyond just "software" patents,) And
there is a lot of work by a lot of people that try to answer the question.
Search ssrn for work by authors like Risch, Merges, Allison, Lemley, Mann,
Zeidonis, Etro (just for starters) and you'll see that the issue is much more
nuanced and complex than what the common narrative tells you.

So does the narrative matter? Well, let's look at the rest of your comment.

You mention a "doubly linked list" patent. That patent is not the greatest
ever, but it is _not_ a doubly linked list:
[http://patents.stackexchange.com/questions/738/prior-art-
for...](http://patents.stackexchange.com/questions/738/prior-art-for-linked-
list-secondary-and-tertiary-traversal)

(Note that even the highest rated answers there get it slightly off.)

Then, pinch to zoom; I'm not sure what you refer to by that, but the last time
Apple's patent was mentioned on HN, its scope was also grossly misrepresented.

Your reply makes two things clear:

1) you have strong emotions about this topic; and

2) you don't really understand how these things work.

And seeing other comments on HN over many years, I can safely extrapolate
another thing:

3) your condition is common to the vast majority of commenters here.

At least to me it seems clear why the narrative matters.

~~~
batgaijin
Why can't an astroturfer at least use a good pseudonym.

a). A data structure is patented. I'll give you that it's not a doubly linked-
list, but seriously. If we are going to start claiming modifications are
unique enough for a patent I guess I should probably look into copying some
n-array.

b). [http://patft.uspto.gov/netacgi/nph-
Parser?Sect1=PTO1&Sect2=H...](http://patft.uspto.gov/netacgi/nph-
Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7,844,915.PN.&OS=PN/7,844,915&RS=PN/7,844,915)
That patent is for zooming and making the UI 'bounce' as though somehow that
is an amazing and ingenious idea. No, it's not. Just because I'm too stupid
too invent an iPhone does not mean I couldn't have invented that in less than
a week.

I do have strong emotions about this topic! When a company infringes on the
hard work of others I think it's a real fucking big deal. When tripe shit gets
media attention and takes years to settle, it just fucks over everyone with a
real patent.

Listen, I agree with the Rearden steel narrative. But if we are going to let
any fucker who can fill out a patent application get dibs on a goddamn data
structure, well you can go fuck yourself. I'd rather be a damn hermit at that
point.

~~~
throwawaykf
Apologies for late reply. Who would I be astroturfing for, exactly?

a. Can you make a logical argument _why_ data structures should not be
patented, as opposed to, say, mechanical or electronic structures? Try to
differentiate them using concrete, technical reasons rather than handwavy
"software is math" (aka "mechanisms are just physics" or "electronics are just
flowing particles") arguments.

Also, modifications have always been patentable ("a better mousetrap" etc.)
The thing is, this patent is not even a straightforward modification; I still
have not figured out a solid reason why anyone would use this, a single
multiply-ordered linked list, over multiple differently-ordered linked lists.

b. That's not the "rubber banding" patent you linked, that's the "pinch-to-
zoom-if-touch-input-is-multi-point-else-scroll" patent. Anyway. You could
argue both of those are bogus patents, but you have the benefit of hindsight.
Hindsight is a very powerful bias, which is precisely why US (and most other
places) require examiners to provide concrete proof, in the form of dated,
published documents, of non-novelty or obviousness to deny a claim. This is,
as far as I can tell, the only way to truly _objectively_ quantify a claim's
contribution, and this is why you see the patents you see.

Not saying it's a perfect system, but once you decide that patents should be a
thing, I personally can't think of a more objective one.

Also, if you think it's as easy as "fill out a patent application to get dibs
on something", I strongly encourage you to give it a shot. Assuming a micro-
entity status in the US, it should cost you a couple hundred bucks.

------
meatcider
It's generally Good News, however NZ is a member of the TPPA negotiations, and
a willing one at that under their current right-wing government. I'm not up on
the details but I'd not be surprised to learn that the provisions in the TPPA
will include some kind of software patents and that this will over-ride local
law.

~~~
bmcleod
In general international agreements don't override national law, they just
oblige the countries in question to pass laws that bring them in line with the
agreement. Which they commonly fail to do in all sorts of interesting ways.
Part of the mechanism in the New Zealand case has been closer to redefining
what software is rather than what patents are.

For New Zealand to add software patents back in would require back tracking
and quite a loss of political capital.

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costapopescu
A few months ago we were got legal threats by patent troll. It sucks that
intellectual property is being abused to the point where startups need more
lawyers than engineers.

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estel
Isn't slightly confusing to see the article was written by "Timothy B. Lee".

