Hard News: The Wellington Declaration
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Totally agree, no benefits to smaller players - and frankly that's our whole industry at this stage. Software is already covered by copyright, so business-process-type patents just add another layer of complexity, slowness and expense without benefitting NZ developers or worldwide consumers whatsoever.
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The Wellington Declaration is a beautiful, clear piece of writing
That it is.
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I am also tempted to ask what is so wonderful about that particular development, but I fear a copyright flamewar would erupt
Basically, with software, because the field is so large and so fast-moving, it's impossible to search exhaustively for prior art or prior patents - often, someone will patent a method then try to apply it retroactively to sue everyone who's invented and/or used a similiar method in the meantime. Check out some of the ones listed here.
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Signatures have topped 3,000. Only about another 12 hours before it's presented - so please read and sign the Wellington Declaration now, and tell your friends the same.
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Visiting Canadian expert Michael Geist was interviewed about ACTA on Radio NZ this morning (streaming, 27 minutes).
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The Wellington Declaration is a beautiful, clear piece of writing.
That it is.
And how much more special is it that it was collaboratively written, via a moderator, in a public meeting? Nat Torkington rocks.
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Exactly - much respect
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One of my great regrets is I will never make a Foo-hui - and never meet Nat-BUT! The worknword goes on-
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Fhui ?
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I'm going to assume that you are in fact familiar with the case against software patents -- it's not exactly a new argument for those of us who care about such things :D
I am indeed familiar with the arguments against software patentability. I just happen to disagree with most of them. There is no reason to treat software as a special case when we afford patent protection to other types of inventions. There is nothing inherently special about the software industry.
Software is already covered by copyright, so business-process-type patents just add another layer of complexity, slowness and expense without benefitting NZ developers or worldwide consumers whatsoever.
Copyright provides only limited protection to software. The source code of the software is a literary work under the Copyright Act, but there's bugger all else you can rely on under the Copyright Act to stop infringers. Copyright is a fairly limited form of protection for any invention.
The patent system exists to reward inventors and developers for their efforts. And it's not just the big players who file patent applications in this country. A number of my smaller clients have filed patent applications for software.
Basically, with software, because the field is so large and so fast-moving, it's impossible to search exhaustively for prior art or prior patents
That argument could be applied to every other industry too.
It just happens that the groups opposed to software patentability are more vocal and better organised than other anti-patent groups.
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Thanks, Scott. As a matter of interest, do you know if other industries use patent tit-for-tat in disputes like large software companies seem to?
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There is nothing inherently special about the software industry.
Maybe that the lifetime of software is so brief that patents are ridiculously too long to be of anything other than inhibitive use? Or how about that software is a literary work,and thus should not be burdened by the restrictions on independent development that apply to patents?
There is very little in software that doesn't qualify as obvious to a skilled practitioner, and the innovative steps are rarely significant. That you've had clients who filed patent applications (successfully?) for software doesn't mean that software patents are not, in general, bad for the NZ software industry. As an IP lawyer of course you're going to have some experience with contrary cases, but it's hardly a flood of evidence.
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do you know if other industries use patent tit-for-tat in disputes like large software companies seem to?
Almost certainly they do, it's just that non-software patents are far less controversial so it's not such big news.
The big thing about software is that the barrier to entry to the global market is so, so small. A single person with a computer can produce a product that millions will use, and it's a complete product not just a component for one. That's pretty much impossible in other fields of endeavour, making it much less likely that an upstart will patent something radical and then try to blackmail existing players, or that existing players will use their portfolios to try and block new entrants.As an example, even where disruptive innovations occur from sole inventors in other fields those inventions are almost always single parts of a greater whole. A new fuel injection system, or a better headlight assembly. The idea of a lone inventor, or even a global team of inventors, producing an entire car that can be given away is unthinkable, for reasons not least of which is that the parts of a car cost money to produce. With software, all you need is time.
Patents work when you can assemble dozens, hundreds, thousands of patented parts into a whole, yet still point to any individual part and say "That part is under patent 123,4567, and that part is under patent 123,4568". Try doing that with software, and see how far you get.
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It just happens that the groups opposed to software patentability are more vocal and better organised than other anti-patent groups.
You think? Or maybe it's just that the evidence in favour of s/w simply doesn't stack up. That was certainly the conclusion of the Commerce Select Committee who heard the "pro" views ad nauseum but who concluded the evidence of the "antis" was stronger.
Equally, your argument that Copyright is weak protection for software does not stack up. Time and time again the GPL licence, which relies on Copyright, has prevailed either in court or in out of court settlements. Same goes for most other software licences which have their underpinnings based on Copyright.
There has never been a time where the creation fo software has been curtailed through the lack of patent protection but there are plenty examples of it being curtailed as a result of patents.
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As a matter of interest, do you know if other industries use patent tit-for-tat in disputes like large software companies seem to?
Large corporates will often play games when confronted with potential patent litigation - irrespective of the field.
Maybe that the lifetime of software is so brief that patents are ridiculously too long to be of anything other than inhibitive use? Or how about that software is a literary work,and thus should not be burdened by the restrictions on independent development that apply to patents?
The Copyright Act uses the term "computer program" rather than software, when describing what is a "literary work". If software was nothing more than source code, then indeed it would be absurd to seek patent protection for it, just as it would be absurd if I tried to patent this blog comment.
But copyright law does not generally protect an algorithm or a software's functionality. A piece of code may have a limited lifespan, but the inventiveness behind it may be more enduring. That's where patents come in.
That you've had clients who filed patent applications (successfully?) for software doesn't mean that software patents are not, in general, bad for the NZ software industry.
But it does show that patents aren't just for the big corporates.
it's hardly a flood of evidence.
No, but then I'm not the one arguing that the software industry should be a special case. I don't see a flood of evidence that software patents are actually harmful.
Patents work when you can assemble dozens, hundreds, thousands of patented parts into a whole, yet still point to any individual part and say "That part is under patent 123,4567, and that part is under patent 123,4568". Try doing that with software, and see how far you get.
Again, software is not a special case. it can often be extraordinarily difficult to establish whether something falls within the scope of a patent's claims, regardless of the field of technology.
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No, but then I'm not the one arguing that the software industry should be a special case.
Actually, you are. Software did not have patents until very recently and it would be unique to have dual protection. Patents *are* special, not the norm. They are a privilege, an artificial monopoly, granted by the state in special circumstances.
I don't see a flood of evidence that software patents are actually harmful.
Perhaps then you could do us the favour of background research and reading before telling us s/w patents do no harm. Because there is plenty research and evidence that shows they do.
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Damn, Don got in before me.
ScottY, he's right, you can't have it both ways with copyright and patent covering software and NOT claim it is a "special case". There is quite a lot of research into the economic disincentive caused by software patents. Google is your friend.
But I find little or no evidence that shows that patents bring any benefit to the software industry, beyond assertions by patent attorneys and companies with lots of patents (such as at the Select Committee).
As the Bilski case shows, even SCOTUS is starting to look a little askance at some of the industry claims.
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Yay, we winkled Mark out of PAS retirement
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:-p
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I realise this threadjack has gone on too long, so I'll keep it brief and call it a day.
Software did not have patents until very recently and it would be unique to have dual protection.
Software patents have been around since the 1970s. They're not that new.
There is not always dual protection for software. Copyright and patents cover different aspects of software. And dual protection is not at all unique. Most new inventions involve more than one form of IP.
Perhaps then you could do us the favour of background research and reading
Thanks for the advice. I've read plenty on the topic - on both sides of the debate.
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And dual protection is not at all unique. Most new inventions involve more than one form of IP.
Ignoring trademark, since it's aimed entirely differently, and software, since that's a ground of significant contention, which new inventions get multiple grounds of protection? Plant species? Not last I knew. Mechanical devices? Nope. Circuit boards? Nope. Embedded systems? Arguably, though the copyright protection is pretty minimal and there's recognition of that in the new Bill.
Here's a challenge for you, Scott. Find us some disinterested support for the proposition that software patents are not economically harmful. That is, research that hasn't come from the software patent industry itself. There's plenty of research from economists with no ties to software that shows that software patents are a net economic harm, but all I've seen from the "pro" side is stuff that I regard as about as credible as the numbers trotted out by Big Media about how "piracy is destroying the industry."
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Ignoring trademark, since it's aimed entirely differently, and software, since that's a ground of significant contention, which new inventions get multiple grounds of protection? Plant species? Not last I knew. Mechanical devices? Nope. Circuit boards? Nope. Embedded systems? Arguably, though the copyright protection is pretty minimal and there's recognition of that in the new Bill.
A large number of inventions are capable of different types of protection. Take a new type of reclining chair for example. You might be able to get patent protection for the mechanism that allows it to recline. The design of the chair itself may be protectable under the Designs Act. If someone copied the chair (at least in NZ) they would probably also be infringing copyright. The packaging the chair comes in may also be subject to either patent or design protection, and there may be copyright in the labelling. (And I have ignored trade marks, as you suggested)
You are assuming that copyright and patents protect the same thing when it comes to software. They don't, as I've explained. It's the same for other areas of innovation. Different IP rights protect different features of a product or invention. In that respect software is not unique.
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I realise this threadjack has gone on too long
Well, these issues are important and interconnected. Patents are particularly harmful to those of us who work in the software industry. Not a single line of new code has ever *not* been written due to copyright. On the other hand, lots of great software and systems have been abandoned due to patents. Do you see the harm yet?
Whilst I am glad you have done some reading others my wish to have a look at some of the submissions that were made to the Commerce Select Committee:
http://nzoss.org.nz/news/2009/commerce-select-committee-hearings-patent-bill
and this post explains how big companies might pick up your start up for free through patents (and yes, it does happen).
All NZ IT companies are small in this context. -
do you know if other industries use patent tit-for-tat in disputes like large software companies seem to?
Yes. Large corporates in all fields will spend millions of dollars amassing huge portfolios of patents that may or may not be valid. Thier competitors do the same. Litigating any one of them will cost both sides hundreds of thousands of dollars and bleed each sides profits white.
Think of it as mutually assured destruction.
Mechanical devices? Nope. Circuit boards? Nope.
Um, yes to both actually. I'd happily file a patent application (to protect the unique functionality), and a design application (to protect the unique look) for both of these categories. If the client had the money and the individual circumstances were appropriate.
The bottom line is, unfortunately, the bottom line.
If I had a small client working away in his garden shed on an improved electro-mechanical braking/acceleration system, and Toyota decided they were going to copy it rather than licence it, if the client didn't have to money to leverage his IP fighting them in the courts, then he'd be shit out of luck. How's that different from the software guys?
Will be back later to see how this is going, but must do some work. Those jackboots won't stamp down on those faces all by themselves, you know.
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All NZ IT companies are small in this context.
All NZ companies, barring one of two of the larger corporates, are small in this context.
There's nothing special about IT.
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