EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

09.27.12

Europe and New Zealand Share a Software Patents Problem As Such

Posted in Europe, GNU/Linux, Google, Microsoft, Patents at 12:23 pm by Dr. Roy Schestowitz

Summary: Patent law in New Zealand and in Europe starts showing some resemblance, with similar loopholes being put in place

THE patent law in New Zealand (NZ) has been subverted to enable granting of software patents.

“IBM and Microsoft successfully rewrote NZ software patent law,” says the FFII’s president, Benjamin Henrion, quoting a source about “replacing an exclusion in clause 15(3A) (which relates to computer programs) with new clause 10A. Rather than excluding a computer program from being a patentable invention, new clause 10A clarifies that a computer program is not an invention for the purposes of the
Bill (and that this prevents anything from being an invention only to the extent that a patent or an application relates to a computer program as such). This approach is considered to be more consistent
with New Zealand’s international obligations (the TRIPS agreement, in particular, contains restrictions on the ability to exclude inventions from patentability). This approach is also more consistent with
overseas precedents and makes it clear that it is only computer programs themselves that are ineligible for patent protection. Under the Bill, a patent may still be granted for an invention that meets all of the criteria for patentability (for example, novelty and an inventive step) despite the fact that the relevant invention involves a computer program in some respect…”

“This is a real shame,” he noted.

Here is further commentary on it: “Last week we reported the last minute backtrack by the New Zealand government, deleting a controversial provision in its new Patents Bill stating that ‘a computer program is not a patentable invention’, and replacing it with a controversial provision which still says that ‘a computer program is not an invention’, but only to the extent that it is ‘a computer program as such’. (See NZ Government Backtracks – to Europe – on Software Patents.)

“The basic idea behind this change is to import about 30 years of European and UK jurisprudence on what it means for something to be a computer program ‘as such’, in the expectation that this will allow – amongst other things – inventions implemented using embedded software systems to be patented.”

Clare Curran responded to this abomination in NZ. Prior to it, wrote the FFII’s president: “Patent law in New Zealand will be voted tomorrow, with or without the as such provision, but I was wondering if the exclusion proposed here by opponents was enough to shield software developers from lawsuits:

http://no.softwarepatents.org.nz/

“”10A(2): Subsection (1) does not prevent an invention that makes use of an embedded computer program from being patentable.”

“I find it a bit odd as a clarification.

“Software developers should not care about patent law, even if they develop “embedded software”, whatever that means.

In response, wrote another knowledgeable activist against software patents: “It’s not a great amendment. (I didn’t write it.) But it might still
work.

“Unclear law is a big problem in Europe because it was all written before software became commonplace, so judges can’t be sure if the author (of the EPC for example) really wanted to exclude software patents.

“In NZ the situation will be better because they have a law that allows software patents, and then the politicians said “no software patents”, and now the law is getting changed. When a judge has to interpret it, she should take into account that this law is supposed to have different effects to the previous law, and the intention was to reduce or abolish software patents.

“(That said, I haven’t been able to confirm that this is how NZ judges work.)

“The other good thing is that the petition has helped to get people organised. If the petition is a success and the politicians listen, then it means the anti-swpat camp is in control and maybe some slight changes can still be made, for this reading or for the subsequent reading. Maybe a few words can be added to the end to clarify that it means inventions controlled by an embedded computer.

“But the short answer is yes, the text does contain a loophole, but it’s too late to change it so we have to look for ways to bring the campaign back to the right direction.”

These are the words of Ciarán O’Riordan who worked with FSFE. The FSF highlights similar problems that go on in Europe and the FSFE does the same by noting: “Now the European Parliament is about to decide on setting up a single patent for Europe, known as the “unitary patent”. This is a chance to get rid of software patents. But if we don’t manage to achieve a real change in the current proposal, software patents will become even more entrenched in Europe.”

Glyn Moody says that “MEPs are back at work, and the Unitary Patent rears its misbegotten head again.”

After TomTom gave up in Europe and Microsoft had its FAT patents upheld in Germany we already see the serious consequences of software patents in Europe. Microsoft bans Motorola devices in Germany and to quote Murdoch’s press, “Google has suffered yet another defeat in its overseas patent battle with Microsoft.

“A German court ruled Thursday that a number of tablets and smartphones made by Google’s Motorola Mobility division infringe a Microsoft patent, and granted the software giant a ban on their sales in Germany. Microsoft must pay a bond of $61.4 million if it wants to see the ban implemented.”

There is more coverage of this and some background: “A court in Munich ruled on Thursday that Google-owned Motorola Mobility (MMI) must recall all the Android tablets and smartphones it has shipped in the country which infringe Apple’s “rubber band” scrolling patent, which was key in its billion-dollar lawsuit win against Samsung in the US.

“The dramatic decision, the latest in an escalating war between Apple and the smartphone and set-top box company MMI, follows earlier cases in which Apple had to disable automatic “push” delivery of email to its iPhone and iPads after MMI won a separate patent fight in Germany.”

Microsoft is getting desperate because “HP has already decided to halt development of Windows RT tablet PCs, while Dell reportedly may also back away from the segment, according to sources from the upstream supply chain.”

Moreover, Intel is not impressed by Vista 8, so despite large-scale patent battles we expect Android to carry on thriving.

Thankfully, people across Europe fight back against inane patent laws. April, a French group advocating software freedom, says: “On September, 13th, 2013, over 460 companies from all over Europe got involved to demand the improvement of the proposal for a unitary patent, following the call for action launched by April and by signing the resolution proposed with StopSoftwarePatent.eu and FFII.”

There is more from April [1, 2] and other groups or individuals who say that “a patent does NOT protect the innovator. It protects the one that filed the patent. It’s called the first-to-file doctrine and is used almost everywhere on this planet now.”

In NZ, this has been a subject of much debate. One person writes:
“Queen’s Counsel Andrew Brown has today written an article in which he confirms that the “as such” proviso added to the Patents Bill in its second reading will allow software patents to continue to be granted in New Zealand.”

Chuan-Zheng Lee has been “[r]eading lots of interesting blogs on #NZPatentsBill #swpats “embedded” vs “as such” debate” and Moody writes that “New Zealand capitulates to the #swpats lobby (see second clause) – http://bit.ly/TmW6Lp sad; #NZ will live to regret this” (background here).

There is even a whole new blog about it, called “No Software Patents in NZ“; it is protesting against software patents n NZ.

So the good news is, as was mentioned before, the public is starting to realise what happens and it gets involved.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email
  • Slashdot

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

A Single Comment

  1. saulgoode said,

    September 28, 2012 at 5:03 am

    Gravatar

    This to me seems somewhat nonsensical from a grammatical standpoint.

    The two clauses:

    (1) A computer program is not an invention for the purposes of this Act.

    (2) Subsection (1) prevents anything from being an invention for the purposes of this Act only to the extent that a patent or an application relates to a computer program as such.

    Could more succinctly be written as (merely by directly incorporating the as such “exception” of the second clause into the first):

    (1) As a computer program, a computer program is not an invention for the purposes of this act.

    Such phrasing is nothing more than tautology; it does not make an “embedded computer program” any more, or less, patentable than a non-embedded computer program.

What Else is New


  1. Links 14/8/2020: GNUnet 0.13.2, Mesa 20.2 RC2

    Links for the day



  2. OK, Melinda...

    Teaching children about sex at the age of seven may seem controversial to most people, but not the Gates family



  3. High-Level Criminals Associate Privacy With Crime Because They Want Privacy Only for Themselves (Control But No Accountability)

    Tyrannical tendencies from the non-scientist who tries to paint himself as Mr. “science” (Jeffrey Epstein tried to do exactly the same thing, which is why he and Gates paid universities) are bare naked for everybody to see



  4. It Was Mozilla -- Not Google (or Chrome) -- That Liberated the World Wide Web From MSIE Monoculture and O/S Vendor Lock-in, But Firefox is Likely Dying

    Mozilla's attitude towards software freedom, privacy, and the most widely used free/libre operating system (O/S) isn't helping the "protected media" (DRM) Fox because its biggest selling point is becoming outdated/irrelevant/neglected



  5. Ars Technica, ZDNet and Bleeping Nonsense Still Misreporting to Blame 'Linux' for Malware One Can Merely Add to Linux (Distracting From Systems With Back Doors, Such as Windows)

    A revised (spun) 'report' that we alluded to last night is spreading to more sites today or overnight; but it's totally distorting the situation to make "Linux" seem a lot more dangerous than it really is



  6. DistroTube Does a Richard Stallman

    A video published yesterday in various sites



  7. Reporting Facts is Never a Crime (It Must Not Become That Way)

    The two-party political system in the United States is racing towards bipartisan (transcending perceived 'wings') rejection of free press, which won't be on the ballot box except for "third" parties; it's a real problem because it's designed to weaken if not obliterate accountability



  8. IRC Proceedings: Thursday, August 13, 2020

    IRC logs for Thursday, August 13, 2020



  9. [Meme] Linux Foundation and ZDNet Openwashing Proprietary Mass Surveillance (for a Fee!)

    The Linux Foundation and ZDNet tell us that Facebook is “open” (because it pays for that openwashing); the Foundation’s love of mass surveillance and spin regarding such surveillance is reaching new heights for the Foundation, clearly misusing the “Linux” brand, is rapidly becoming a leading voice for malicious surveillance companies that need openwashing to merely seem or feel “ethical”



  10. [Meme] IBM and Its Shakeups (Shaking up of the Earth)

    The Linux Foundation helps IBM seed shallow press coverage [1-6] about how IBM supposedly ‘saves the world from earthquakes’ 75 years after atomic bombs were dropped on Japan (after IBM had helped develop these), causing earthquakes-like effects and deaths of hundreds of thousands of people



  11. Backup: KIRO Report About Arrest of Rick Allen Jones

    We're making a mirror of this report as the media never touches the topic anymore



  12. Promoting False Perspectives and Narratives About GNU/Linux to Let Microsoft Dominate/Control Everything (Sometimes Quite Cynically in the Name of 'Security' or 'Responsibility')

    Microsoft's "perception management" games are progressing and are finding their way into official blogs of supposed 'competitors' like Canonical and SUSE



  13. Links 13/8/2020: New LibreOffice 6.4.x, Linspire 9.0, Endless OS 3.8.5

    Links for the day



  14. The National Center for Missing and Exploited Children (NCMEC) Identified Some of the Children in the Pornographic 'Stash' of Bill Gates' Engineer

    Today we carefully and responsibly disclose just 9 pages (out of about 2700 pages) with slightly redacted samples and a handful of exemptions to show what Bill Gates' engineer was amassing, including identified kids (known to NCMEC)



  15. A Red Hat Response to Factual Information About Red Hat

    So far we've seen only Red Hat employees blasting our articles about Red Hat/IBM and the responses lack any substance, just name-calling (so we must be on the right track; there's no refutation so far)



  16. Always Look for Stories the Media is Suppressing and Hiding

    Based upon closer scrutiny of the Jones case (engineer of Bill Gates arrested for pedophilia at the Gates mansion), the sentence he received is incredibly negligible or close to nothing (for possession and sharing/dissemination of massive troves of child pornography, typically leading to many years in prison), so we’re closely examining if he’s still working and whether he still works for Bill and Melinda (more FOIA requests may be necessary)



  17. On Web Servers, Microsoft's Collapse Continues More Rapidly Under COVID (a Million Domains Lost in the Past Month)

    Even though the Microsoft-sponsored media repeatedly refuses (or strangely enough just 'fails') to report on it, the days of Microsoft's IIS are likely numbered; it won't be long before less than a million computers run it



  18. Canonical is Boosting Microsoft's Proprietary Software With Extensive Surveillance

    Canonical’s commitment to Free software barely exists; with so-called “Apps” and “Snaps” and “Stores” we’re seeing a gradual transition to — and acceptance of — blobs and DRM, including Microsoft lock-in inside Ubuntu



  19. IRC Proceedings: Wednesday, August 12, 2020

    IRC logs for Wednesday, August 12, 2020



  20. Harfbuzz Joins LibFFI, Zlib1g in Dragging GNOME, All Free Software Towards Microsoft

    "...I don’t want to help them help Microsoft control my computing by proxy — by controlling the development platform itself"



  21. Links 12/8/2020: Go 1.15, LibreOffice 7.0 Downloaded About Half a Million Times, LibreELEC (Leia) 9.2.4

    Links for the day



  22. Mega Setup, Mini Budget

    For a sum total of under £800 (eight hundred British pounds are about USD/$1043) one can piece together a versatile working environment (my latest additions, as of 5 days ago, are the 4 plastic plants)



  23. Twitter Appears to Have Taken Vendor/Platform Lock-in up Another Notch, Having Become Almost as Malicious as Facebook

    Twitter jumped the shark



  24. IRC Proceedings: Tuesday, August 11, 2020

    IRC logs for Tuesday, August 11, 2020



  25. Infographic by Marcia Wilbur: Where's My Refund?!

    Tweet by Marcia Wilbur:



  26. Links 12/8/2020: New GNU Emacs, GXml-0.20, WordPress 5.5, and Mozilla is Laying off 250 Staff

    Links for the day



  27. You Just Know Somebody is in a State of Retreat When the Strategy Becomes to Discredit One's Critics (or Collectively Paint Them All as Wrong/Crazy)

    A goulash of bullcrap from Bill Gates doesn't add up; it seems like his media strategy has warped (or fallen back) onto discrediting his critics as though they don't exist, don't know anything, or are simply jealous



  28. United States v IBM Archives/Resources

    As the massive case against IBM monopoly (United States v IBM; 104,400 pages of trial transcripts and 17,000 exhibits) predates the World Wide Web it's difficult to find comprehensive literature about it any longer (Wikipedia and more modern sites are instruments of revisionism and reputation laundering)



  29. History Goes in Cycles

    Just like antiwar activism was 'quelled' or 'pacified' half a century ago nowadays we're led to think that software freedom is just fine and there's nothing left to argue about (except words and other petty nonsense)



  30. Looking Back at the Real Story of Microsoft

    Let's take a moment to examine what Microsoft was all along (since its formation in 1975)


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts