Software Patents: Thrown Under A Bus

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With the removal of the explicit software patent exclusion, and the addition of two tiny words, "as such", the Commerce Minister, Craig Foss, has more or less thrown kiwi software developers under a bus.

The minister may believe that replacing the explicit exclusion of software patents with an "as such"  is striking a clever compromise. If that is the case, he needs to be disabused of his mistaken impression: those six letters represent a legal loophole the size of a bus, which have made a mockery European Union patent legislation's intent: to block software patents (see here, here, and here).

Our patent legislation will almost certainly become similarly farcical - the precedents in Europe are clear, and "recipes" for driving around the spirit of the legislation are available for any patent lawyer.

Any hope that our government would show visionary leadership in patent reform seems to have been dashed. This is a victory for US corporations who have refined the art of the "patent infringement extortion", and have broken the software marketplace overseas, using software patents to set back any would-be competitors.

With this decision, the National government appears to be showing whose side it's really on: after leading us down the garden path for two years, we now know it's not on the side of New Zealand software developers. The only word for it is betrayal.

This is currently going towards a head-butting situation. One problem is that the economic life of software is much shorter than the statutory 20 years. Viewed from another way, a patent is basically a formal recognition of trade secret. Trade secrets are essentially limited duration because software is fungible, anything can be emulated given enough resources so applying the legal doctrine of equivalence is self-defeating.

Proposal ... in return for retaining legislation as it is (without the "as such" limiter), craft a copyright collection organisation (CCO) that can reimburse software holders as such for not having monopoly rights. A patent is basically a surcharge over and above a market clearing rate but as a trade secret this is measured in time. So if a software patent exists in say Australia, then the monopoly rights holder could delay release of the same software in NZ for say 7 years. The CCO could then negotiate for a payment to reduce this delay for a one-off payment ... this is conceptually similar to a collective negotiating bulk patented drug discounts ... but only for software which can be proveably shown to be "innovative" in
a) not being obvious (if so then not possible to replicate it in the 7 year gap)
b) not reproducable to someone skilled in the art of computer software engineering (ie combination of techniques)
c) fails against independent development within NZ that because is obvious to someone not in MS or IBM, hasn't bother to patent as publishing it as open source software makes it prior art.

The analogy is that a local tinker, by merit of own ingenuity or insight, should not be prevented from competing fairly against a guild of overseas blacksmiths. Copyright law as it exists, is strong enough to protect the interests of those blacksmiths.

dave's picture

There're lots of potential alternatives to software patents, but ultimately none of them are necessary. Until the patent wars started as a result of the completely screwed up US patent system (and others that conceed to US pressures to emulate it) most of us software developers in NZ never even thought about patents - we just wanted to write cool software. Heck, some of us love it so much, we do it for nothing and then give it away - and some of us also do it to order, and make a decent living, thanks very much.

Ultimately, as long as no one else tries to take credit for my work, and I have the ability to license my code in the way I see fit (via the legal instrument of copyright) so that no one can block me from sharing it, then I'm happy. Software patents threaten my freedom to create and share, and they give other people an artificial monopoly on ideas and concepts. It's not the way I like to do things, and in the software world at least, I want it to stop.

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