

Software will not be patentable in New Zealand - bitserf
http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10882569

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spodek
"Commerce Minister Craig _Foss_ said today that following industry
consultation he had decided to remove the patentability of software from the
Patents Bill, which is currently before Parliament."

If anyone is going to support Free and Open Source Software, it's going to be
a guy named Foss.

The government asked its citizens their thoughts "a recent poll of more than
1000 Kiwi IT professionals found 94 per cent wanted to see software patents
gone." -- As overwhelming as 94% is, I wonder the motivations of the last 6%.

The U.S. is in software patents so deep, the only way I can see it changing is
watching other countries move faster without the drain on innovation and the
need to pay lawyers when you code.

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sage_joch
This sounds suspiciously like a government that works for its people.

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te_chris
[partisan alert] I wouldn't go too far on that. If you're poor and unemployed
here you probably don't feel like the govt. are working for you all that much.

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lancewiggs
I'm continuously amazed by all of the major political parties here in New
Zealand who keep using logic and facts instead of merely political stances.
Our process of making laws is open, listens to the people as well as
lobbyists, and yet allows room for policy differences.

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SeanDav
NZ makes some great laws (this is one of them) but it makes a few dodgy ones
as well - like trying to give Chimpanzees human rights.

Sorry I brought that one up but is one of those laws that has always just made
me say - "What the fuuuuuc....."

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ekianjo
Sure, we all know since Descartes that animals are robot-like objects, have no
feelings and no emotion and should be treated as such. So, let's make sure the
Law does not take in account any of the discoveries related to emotion and
pain in animals, and let's keep business as usual and feel good about it.

Sums up your position ?

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SeanDav
Wow, over-reaction, much? Look, I could go on and make several well reasoned
arguments about how animals are not human but clearly it would be wasted on
you.

Just a quick question, but once you have given Chimps human rights and said
Chimps go on and kill and eat other apes/monkeys, as they commonly do in the
wild - would you have them up for murder and cannibalism charges with
appropriate punishments?

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ekianjo
OK, maybe I took your comment the wrong way. Sorry about that. The way you
wrote your comment gave me the impression that you were saying animals are not
worthy of compassion, but if that's not the case then it's all good.

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sigzero
Compassion...sure. Human rights? No.

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chris_wot
Why?

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afreak
I would argue that if we are to give chimpanzees human rights then we may as
well start enforcing building codes for beavers and ants. What is unnatural
(law) does not necessarily work for those the animal kingdom. It should not be
forgotten that animals have a certain level of rights to coexist with us on
Earth but at the same time it does a disservice to humanity to treat them as
our equals.

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zmmmmm
It would be very cool if a major software house set up or moved their
development shop to NZ so as to be free to develop and test their products in
a patent-free environment. Sort of like we have tax havens ... software
development havens?

It would be even cooler if a few different countries did this and set up a
sort of, software patent-free economic zone.

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stephen_g
The problem is that any company that sells to people in the US can have their
product banned from import if it is found to infringe on patents there.

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zmmmmm
It could create a whole new architecture for software - just the patented
parts hosted remotely in software-patent-free zones while the rest is brought
local to the customer. At least for the types of products where that works.

~~~
pbhjpbhj
> _while the rest is brought local to the customer_ //

Sounds like contributory infringement to me. Why not just host the entire
thing distally and access via VPN?

The answer lies in where a product is considered to be sold. If you're
targeting customers in the USA say then it doesn't matter where your server is
you're still considered to be selling in the USA.

YMMV and I'm afraid I don't have any caselaw handy to cite on this.

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jimworm
While software that violates other countries' patents cannot be sold to those
countries, the sale of software is not the only use of software. The visual
effects industry for example can sell their visual effects, and this is a
major part of the NZ software ecosystem.

As a kiwi in Europe I can say that this will affect any future decision on
where I'll base my business.

That is until the US comes in with their bullying tactics and buy our PM with
5 minutes of facetime with Obama.

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spajus
How can anyone support legalized extortion like software patents? Hopefully
this will change in global scale, when new decision makers will replace the
old farts who don't have a clue what software development actually is about.

Respect for New Zealand for embracing the change!

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forgottenpaswrd
Wow, that increments the possibility of finding weapons of mass destruction
there to the roof!

~~~
cpursley
Or big-time torrentors ; )

Oh wait...

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acabal
What does this mean for software companies in New Zealand? If they sell
software in the US (and who doesn't, with the internet and all), I assume
they're still on the hook for US patent law?

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atirip
No. Technically NZ company can not sell anything outside NZ. And company only
operates in jurisdiction of his origin country. Technically "selling in the
US" means that NZ company is exporting (and this is regulated by NZ laws) and
those who buy that software are importing (which is regulated by US laws) said
software into US and US patent holder(s) can try to prevent that import. But
even then this means nothing to the NZ company in question. On the other hand
if said NZ company has daughter company in US, then yes, that company can be
sued.

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evolve2k
xero.com the beautiful accounting software comes to mind, I wonder what this
means for them.

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wildster
The UK and Europe have similar restrictions:
[http://en.wikipedia.org/wiki/Software_patents_under_United_K...](http://en.wikipedia.org/wiki/Software_patents_under_United_Kingdom_patent_law)

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polymatter
Thats misleading, since software patents are regularly granted anyway. From
the article you quoted:

"Patent laws in the UK and throughout Europe specify a non-exhaustive list of
excluded things that are not regarded as inventions to the extent that a
patent application relates to the excluded thing as such. This list includes
programs for computers.

Despite this, the United Kingdom Intellectual Property Office (UKIPO)
regularly grants patents to inventions that are partly or wholly implemented
in software"

The patent situation is definitely better in UK and Europe than in US, but
actual enforcement is key. The problem is using ambiguity of English to
justify the software as having a "technical effect" and patentable by that
metric. At which point saying that software isn't patentable is at best
misleading since you could argue that all software has a "technical effect".

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throwawaykf1
It's not "ambiguity of English" -- all (usefulsoftware does have a technical
effect. Or would you say software should be excluded from the "tech industry"
and people should stop calling themselves "software engineers"? This is why it
is mostly patentable in the EU.

About the only thing the "technical effect" limitation prevents is business
method patents.

~~~
polymatter
I don't know the rules in detail, but the claim is that "software isn't
patentable". And yet software with a technical effect is patentable. But all
software has a technical effect. Ergo, software isn't patentable because its
software, its patentable because it has a technical effect and UKIPO has
granted patents on software on that basis. This means that claiming "software
isn't patentable" is a misleading claim at best.

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jgamman
or it will be superceded by the Trans Pacific Partnership. But I can't tell
since the text hasn't been officially released. Leaked drafts don't look good
though.

~~~
qu4z-2
"Eternal vigilance is the price of liberty."

There's always another bill someone's trying to force on us :/

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knackers
It will be interesting to see what the practical effect of this is over the
long term. The new SOP says that certain processes involving software will
still be patentable, which seems remarkably similar to the Supreme Court's
finding in Diehr.

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cpursley
I've always felt that NZ was a sensible place for startups (in theory, I've
never been). A nice clean country, easy of doing business, no capital gains
tax, respectable government, no drones or porno scanners, California-like in
north (and amazing scenery every in general), impressive # of tech companies
in relation to size. They'd be smart to do a Start-up Chile sort of program.
If I were a VC and wanted an adventure, I'd set up shop in Auckland and target
the promising startups who couldn't get US visas.

<http://ease-doing-business.findthedata.org/>

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ultimoo
We recently covered patents and basic copyright law in a technical writing
class. What my professors taught me was that 'patent is a contract between
society and inventors to encourage progress'. And it seems fair on certain
levels.

I am a huge proponent of FOSS, I respect Stallman, I've read his book and I
think patent trolls are dicks. However, is it a good idea to make software
_not patentable_? Will we as a community fail to innovate then?

 _Disclaimer: I only skimmed over the OP_

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jbri
The problem is that the vast amount of computer software doesn't contain an
inventive step. The vast majority of software development is taking existing,
well-understood techniques and solutions, and applying them to an equally-
well-understood problem. Implementation, rather than innovation.

The parts of software development that are genuinely inventive (and thus could
be considered worthy of patent protection) are either already held to be not
patentable (mathematical algorithms, development practices), or are far better
served by copyright and trademark law than by patents (design). Patents serve
little-to-no-purpose in protecting legitimate invention in software.

~~~
belorn
Lets also not forget that proprietary software implementations are by design a
secret, which almost always are kept forever from the public.

So a genuinely inventive idea can be independent created over and over again.
A email sorting algorithm could had firstly been made in then 1950, again in
the 1970, 3 times in the 1990, and then claimed in a patent in the 2000. Even
if source code was public, a patent examiner would have to compare and
understand billions of line of codes to even try to grasp what is genuinely
inventive, and was has already been done before.

Examining software patents is an unsolvable problem. Society can either have
them an accept that any review is a token effort at best, and a rubber stamp
in the common case, or they can avoid the whole mess by not allowing those
kinds of patents.

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coherentpony
New Zealand is such an awesome country. Wasn't it also voted the most free
country in the world? I have no sources to back that claim up; I read it
somewhere.

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shmerl
Really good news. Now, can someone do the same thing in US please?

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GigabyteCoin
If you're not making the software that you yourself use, you probably want it
to be free.

[http://en.wikipedia.org/wiki/Category:Software_companies_of_...](http://en.wikipedia.org/wiki/Category:Software_companies_of_the_United_States)

[http://en.wikipedia.org/wiki/Category:Software_companies_of_...](http://en.wikipedia.org/wiki/Category:Software_companies_of_New_Zealand)

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john_w_t_b
This will set a good precedent for other developed countries. Let's hope
Australia goes next, and maybe Scandinavia.

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Kiro
Is this really that newsworthy? I thought the US was the only country in the
world where patents apply to software.

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Samuel_Michon
In Japan as well.

<http://en.wikipedia.org/wiki/Software_patent#Japan>

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sirtel
approval. A software is just like a math formula or expression. Can a math
formula be patentable?

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marssaxman
New Zealand seems like such a sensible place.

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Neepy
<http://3strikes.net.nz/information/law-basics> :\

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sitharus
That's a nasty one, but such an easy law to avoid. Use direct downloads or
download movies, since the movie companies are protesting paying costs by not
filing complaints.

I'd rather it didn't exist though.

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meric
Even in its nastiness it is sensible in its own right - $25 cost for the
copyright holder to send a notice. The notice can also be challenged by the
accused infringer.

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qu4z-2
Well, also you can't get another notice within 28 days.

And if I recall correctly, you have to get three notices within 9 months.

So basically if you manage to spend less than 1/3rd of your time "On Notice"
you should be sweet as.

DISCLAIMER: IANAL

EDIT: Actually, fence-post error. The correct figure is ~2/9ths, as penalties
trigger on the receipt of the third notice (so we can't count its period).

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Matsta
I think everyone forgot about the 3 strikes law here.

None of the big ISP's enforce it AT ALL.

I've heard a couple of small ISP's kick a couple of people off back when it
was first introduced but since then there's been nothing.

Considering most of my friends here all torrent everything off The Pirate Bay
(They don't use private trackers :p), I don't think I've heard of a single
person I know get in trouble.

Telecom NZ would see that enforcing that law as a cost to them (they are
pretty anal about spending money on things other than marketing), so they
would probably not do anything until the government takes them to court.

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lostlogin
My father got a letter from his small ISP saying that they won't be playing
along the the three strike thing, and for some reason even if they wanted to
they couldn't be sure which of their customers was the infringer. Heavily
suspicious, but not 100%. So carry on, we got your back. He is just outside
Tauranga.

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mappu
♫ Pōkarekare ana

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pessimizer
Craig _Foss_?

