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. ⬆