Archived entries for patent

Software Patents: things are livening up

A bouquet goes to the chief executive of the New Zealand Computer Society for his letter to the Minister (pdf).

A brickbat goes to the director of strategy and innovation at Intergen for his intemperate comments about those who took the time to make a submission to the Select Committee.

Once more: there is no “fundamental right” to a statutory monopoly in the form of a patent. A patent is a privilege, not a right. Societies grant patents because, on balance, we judge that the social good exceeds the harm. We generally accept that monopolies are harmful, so the onus is on those wishing to acquire such a monopoly to make their case.

As Eben Moglen has noted of a recent US court decision:

[This] shows the beginning of a broader front in the judicial determination to reign in patenting that has gone too far, turning information that should be free to all into property exclusively held by a few.

And as the Computer Society’s letter reminds us:

we do not see the software patent issue as an Open Source vs Proprietary Software issue

I continue to wait for those in favour of software patents to present a reasoned, evidence-based argument in support of their position. A position which appears to be faith-based is not, in my view, a sound basis for policy. To quote Eben Moglen again, we need compelling reasons before we “can tolerate the widespread creation of statutory monopolies on ideas”.

Software Patents: the heart of the matter

In a generally clear and thoughtful analysis of the Commerce Select Committee’s report and recommendations on the Patents Bill, Baldwins have identified the key point of the free software community’s view of software patents:

It is not clear why the Committee gave the open source Community submissions such weight.  To argue that software is unpatentable because it builds on existing software seems unusual given nearly every invention builds on what others did before.  As many innovators realise, one object of the patent system is to promote publishing of inventions.   Then others have the opportunity to learn and develop from those inventions and improve our standard of living.

Software development builds on existing software in the same way that novelists, and indeed their readers, draw on past works. Culture always builds on the past. And the past always tries to control the future; software patents are an example of this. As all software developers realise, to understand and implement a software innovation, you need to read the source code. We learn to write large, complex programs by first making small changes to big programs, not by writing a small program, then a bigger program, then a big program.

Many novelists start their writing careers by producing works which are derivative of other writers, before finding their own voices. Much of the advice given to aspiring authors (and software developers) reflects this:

  1. read widely and read a lot
  2. write, then re-write
  3. stop doing things which aren’t reading and writing

Free software developers are applying the scientific method. Releasing software under a free licence means others have the opportunity to learn and develop from it and improve our standard of living, or solve their own private problems. Reading a patent doesn’t help, that’s software alchemy; you need to “show me the code”.

The Select Committee had the difficult task of distilling a large amount of complex, and in some cases highly technical, evidence into about a page in its final report. It would be helpful to what is clearly going to be a continued debate if all the evidence presented was made available online. Free software requires free documentation. This is how we correct our mistakes:

Many a beautiful theory was killed by an ugly fact. — T. H. Huxley

As the digital economy plays an ever-growing part in the total economy, we as New Zealanders need to decide whether we want to build our future on software science or software alchemy. Based on the evidence placed before it, the Select Committee chose science.

Software patents: it ain’t over until it’s over

An opinion by Ken Moon, posted on 1 April, presents A J Park’s view on the unanimous recommendation from the Commerce Select Committee that “a computer program is not a patentable invention”. He notes that, “This indicates the select committee accepted the submissions made by those who are opposed to granting patents for software inventions [sic]” and goes on to say:

The submitters’ arguments are highly contestable.  They believe that software patents are inconsistent with the open source model.  However, this is only relevant if the model is proven to be best and that all software developers should use it.  There is no such evidence.  Developers who use the proprietary model should be free to do so unless there is proven economic harm.

The problem I have with the idea of software patents is that I have never heard a convincing answer to the question, “What is the problem to which software patents is the solution?” Nor have I heard a convincing rebuttal to the many arguments against them, such as Richard Stallman’s analysis of The Danger of Software Patents.

I do not accept that “software inventions” are comparable to “mechanical or chemical inventions” — rather, they are akin to literary and musical inventions. The idea of software patents makes as much sense as the idea literary and musical patents. Do those who want software patents also want literary and musical patents? At the Select Committee hearings I attended, I saw no evidence presented to support the claim that software is an “invention” — it was simply assumed.

I do not understand how this in any way affects the freedom of those who write proprietary software. As far as I can see, they can continue to do so, continue to offer proprietary licences for sale, and continue to treat their source code as a trade secret. I am not aware of any evidence that excluding software patents will harm developers of proprietary software. Quite the contrary; Bill Gates has stated that, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” It appears the lesson he drew from this was to take out as many patents as possible, so he could do unto others what he was glad others had not done unto him.

A number of people from the New Zealand free software community took the time to write submissions putting the case against software patents and took the time to appear before the committee. If New Zealand developers of proprietary software chose not to take advantage of this opportunity, one may reasonably conclude that they too see no need for software patents. Patent attorneys may well see compelling benefits from software patents, but like any service provider, they need to make their case to the customer, so the customer can make an informed decision.

It’s easy to be cynical about politicians. The committee, representing all parts of the political spectrum, read the submissions, listened to the arguments presented, asked thoughtful questions, and reached a unanimous conclusion. They decided, as many of us have done, that those in favour of software patents have simply not made their case.

Let us hope that when the bill returns to the House, the legislation passes in its amended form.

No Software Patents in New Zealand?

The revamped Patents Bill still has to pass more legislative hurdles to get through to law in New Zealand. But it has been through a very important period of review and public consultation. Parliament’s select committees are made up of MPs that represent all parties in the house. After this bill’s first reading it was the job of the Commerce Select Committee to review and consult on the proposed legislation.

They have completed that process and reported back to the house with their conclusions. This report contains several recommendations which, under normal circumstances, should make it into the legislation that is then passed into law.

A pdf version of the report is now available.

Here is how the MPs of all parties introduce their findings:

[the old act] has a low threshold for patentability compared with most other countries. This low threshold can lead to broader patent rights being granted in New Zealand than in other countries, which can disadvantage New Zealand businesses and consumers[...] This can discourage innovation and inhibit growth in productivity and exports.

Finally, some sense around the economic issues of “intellectual property”. But here is the real juice for the free and open source software community:

We recommend amending clause 15 to include computer programs mong inventions that may not be patented. We received many submissions concerning the patentability of of computer
programs. Under the Patents Act 1953 computer programs can be patented in New Zealand [...] Open source, or free, software has grown in popularity since the 1980s. Protecting software by patenting it is inconsistent with the open source model and its proponents oppose it. A number of submitters argue tha there is no “inventive step” in software development, as “new” software inevitably builds on existing software. They felt that computer software should be exluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques. In general we accept this position.

(My emphasis)

So, there you are. New Zealand MPs of all parties are to be congratulated on recognising, what to many, for many years, has been patently obvious. There are some members of that committee that paid particular attention to the detail of the debate, there were also lots of submissions made be patent lawyers in favour of patents. These MPs weighed up the arguments and came down against software patents. This is ground breaking and visionary. I congratulate our law makers today.

To all who took the time and effort to write submissions and who took the unique step of coming to Wellington and baking up those submissions orally…congratulations. Most of us in this community did so on our own time and covering our own expenses.

We now need to ensure that this recommendation actually makes into the redrafted legislation.

Hoisted By Their Own Patented Petard

Microsoft is used to battling with software patents, both as the prosecution and defence, but now find themselves on the receiving end of an injunction that stops them selling XML-capable Microsoft Word in the US. They have 60 days to comply and/or appeal, and owe i4i a cool US$250 million for the infringement. Some are happy to view this as karma, I view it as yet another example of why software patents are a bad idea.

If New Zealand is foolish enough to allow them, any software development in NZ will be restricted by the activities of large patent trolls and the owners of foreign patent portfolios. Unless you have the backing of a major international company, you won’t be able to develop software without fear of prosecution or straightforward legal terrorism. The damage caused to NZ’s IT industry will be unimaginable.

Now, would someone like to remind me what patents are supposed to do for us? Right, encourage innovation. Clearly they do not do so in the field of computer software, and so equally clearly they should not be granted in New Zealand. You might mention that to your MP, you know, just to preserve your job and everything.

Vik :v)



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