Hard News: The Wellington Declaration
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They are not perfect, but they are at least providing an essential gatekeepers role.
Apologies for the rant :).
Assuming I understand you correctly and you are referring to Pharmac, I think there is a general misunderstanding of what Pharmac is required to do. They aren't gatekeepers. What they have to do is decide which treatments will result in fewer deaths. And then they recommend that government money be only spent on the least lethal treatments.
What that amounts to is that they have to decide that specific drugs will not be paid for by the government despite knowing that those drugs will save lives. That's a horrible choice to have to make and they deserve tremendous respect from every New Zealander.
Because they are literally charged with putting a price on lives they are very very price conscious. So when given the option of recommending a generic (off-patent) cheap version of a drug instead of the Louis Vuitton version they go for the cheap drug. This pisses off the drug companies who have lots of money to buy politicians.
There is nothing stopping people buying the expensive versions of the drugs in New Zealand - we have a free market. However government money is not spent on expensive fashionable versions of drugs. Or on expensive drugs of limited value.
Where drugs are of limited or poorly demonstrated benefit and yet are very expensive Pharmac is charged with making the call on which patients will get the benefit of the limited dollars, ie who will die. That's a rough job and I couldn't do it. They deserve tremendous respect and deserve to be protected from political whims.
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There's nothing special about IT.
Agreed. You are the one arguing for a special case, not me. This is why software doesn't need the "special" treatment patents give. There is "nothing special" about law either but I don't see too many lawyers rushing to have patents apply to special defences.
Rich, you and Scott still have not explained why it is a benefit to have s/w patents. What you are using is a "lawyerly trick" to try and patent what should not be patentable.
At a more practical level, as a software developer I can code up 100s of supposedly patentable concepts in a day. This is not "hard invention" work. Where are all the patent examiners going to come from?
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What they have to do is decide which treatments will result in fewer deaths. And then they recommend that government money be only spent on the least lethal treatments.
I'm guessing Pharmac might prefer to say 'most effective', rather than 'least lethal', but harm minimisation is at least one of their roles, within the budgetary constraints you mention. This is a big area for discussion on it's own, and I can at least see how ACTA the way America sees it could jeopardise this important role. That attitude has done wonders for the needs of the Third World with HIV medication. Not.
The recipient of the Person of the Year, Ray Avery, has established an interesting model with his nutritional sachets. He sells them into developing countries for 50c (from memory) but packages them as 'Body Builder' supplements for the US where they pay US $25. Clever.
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Signed yesterday.
And like others wanted to give a hat-tip to Nat and those at publicACTA, for the work they put into crafting the Wellington Declaration.
I am still not sure on all of the details of the ACTA - but am wary of the implications.
As a non-expert, it was a pleasure to read something so clear, concise and lucid.
Thanks.
ps. could you do the same for national standards please. ;-)
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ps. could you do the same for national standards please. ;-)
Hah! Actually, though, I didn't think the NZEI leflet was too bad.
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However government money is not spent on expensive fashionable versions of drugs. Or on expensive drugs of limited value.
(cough) Herceptin (cough)
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However government money is not spent on expensive fashionable versions of drugs. Or on expensive drugs of limited value.
(cough) Herceptin (cough)
Which was driven by political interference. That was about the first act of interfering in public service decisions that National carried out once they took the reins.
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You are the one arguing for a special case, not me.
Not at all. All inventions are potentially patentable if they meet certain criteria, regardless of their field of technology. You are saying that there should be an exception for software. That means you're the one who wants software treated differently to other forms of innovation.
What you are using is a "lawyerly trick" to try and patent what should not be patentable.
Ah yes, it always comes back to the tricky lawyers.
Doesn't this almost always happen when people start talking copyright in these parts? Which is why I am now exiting this particular debate. Don, I respect your opinion and advocacy on this issue, but I just wanted to present an alternative view. I've said what I wanted to say.
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(cough) Herceptin (cough)
Yeah that was the govt, not Pharmac though. Playing politics with drugs money, bad form.
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I've said what I wanted to say.
But sadly, like many patent lawyers, presented no evidence to justify extending the what should be a limited privilege of patents to software.
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Which was driven by political interference.
Exactly, what Pharmac usually avoids
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The Herald has a Wellington Declaration story.
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There is very little in software that doesn't qualify as obvious to a skilled practitioner, and the innovative steps are rarely significant.
I have to disagree there. Obvious does not necessarily equal logic, or the other way round. Some human brains cannot get past an (if x then y) statement ( if x= drunk and y= don't drive for instance). I know software developers that build massive collections of sub routines, gleaned from other peoples software (open source, of course) without a clue as to the logic of the sub routines, to construct applications that do wonderful stuff. Only to be dumbfounded when some young logician rips out half the code and the application not only still runs but runs better because they removed logical loops that were totally unnecessary.
Real logic can seem totally weird to the most clever people sometimes. -
skilled practitioner, and the innovative steps are rarely significant.
I have to disagree there. Obvious does not necessarily equal logic, or the other way round.
Maybe not, but that's not what's required. For the purpose of examining patents, it is assumed that the innovative step must not be obvious to an expert in the field. If a person can produce software only by collecting together the work of others, they are not qualified as an expert. That's about the extent of my ability to produce software in any language other than shell, and I certainly don't consider myself to be anything vaguely expert on the subject despite knowing quite a lot about the theory of software development.
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Firstly, a wee air-clearing session.
It is entirely possible to be appalled at the bully-boy tactics applied in the ACTA negotiations, but also a the same time not think that patents/copyright/intellectual property are evil concepts and should be abolished.
It's not a black/white, zero/one, on/off, with/against proposition, 'k? I'm not (necessarily) your enemy.
Moving on:
You are the one arguing for a special case, not me.
I'm not arguing for or against anything. Merely stating facts.
All I have thus far stated is that:
1) you need a lot of money to effectively use the patent system to your advantage, whatever area of industry you work in, therefore...
2) It sucks if you don't have any.There is "nothing special" about law either but I don't see too many lawyers rushing to have patents apply to special defences.
You'll have to expand on this because I don't grasp the point you're making.
What you are using is a "lawyerly trick" to try and patent what should not be patentable.
The second time in a month I've been accused of using lawyerly tricks. Maybe I should change my style. If I told you these aren't the 'droids you're looking for, would you tell me to move along?
And again, I'm not 'trying to patent' anything. The number of software patents I've filed, ever, is zero. I don't expect this to change any time soon.
The law (which parliament is responsible for making or changing, and the courts are responsible for interpreting, not me) as it currently stands states that: " "invention" means any manner of new manufacture" [NZ patents act 1953, S2].
The courts have decided that patent claims relating to software are valid (if drafted in a certain fairly specific manner). That is, they are a 'manner of new manufacture'. The relevant NZ decision is 'Hughes aircraft' (full text here) from 1995, which closely followed an Australian case (1) from 1991.
'Software patents' have been around a while, longer than I've been in the game. If it's a 'lawyerly trick' to point this inconvenient fact out, then colour me guilty as charged, yeronner.
I'm not the one arguing that software should be 'in' the patent system. In NZ, it already is 'in' the patent system and has been since 1995. That, I'm afraid, puts you in the position of arguing for a change in the status quo - that it should be 'outside' the patent system. You're the one arguing for the special case, not me.
If you want to argue that all intellectual property is wrong, then fine, make the case and let's debate the merits.
If you want to argue that software is special because of the quick turnaround and time to obsolescence, then fine, make that case. There are precedents (e.g. in pharmaceuticals) for a non-standard patent lifespan based on special circumstances.
But let's be clear what we're arguing about.
At a more practical level, as a software developer I can code up 100s of supposedly patentable concepts in a day. This is not "hard invention" work.
There's nothing in the law as it stands stopping a large corporation filing thousands of patent applications for purely mechanical devices, which at the time of filing they know are junk and none of which will ever result in a valid patent.
With enough money, the system can be used as a blunt instrument by those that wish to wield it in that manner. Quantity has a quality all of it's own.
So why is software a special case?
Where are all the patent examiners going to come from?
A good question, but it's not unique to software.
I spend much of an average working day fighting with the US patent office. As the not entirely fair saying goes 'those that can, do. Those that can't, teach.' And in the US, those that can't do either become patent examiners and make other peoples lives miserable by acting deliberately obtuse and obstructive.
In Europe, I'll end up talking to someone who actually knows what they're doing, but it'll take me four, probably five years to get to the head of the queue for a first exchange of correspondence. Then every couple of years after that. It's not unheard of for European applications to reach the end of a 20-year lifespan and expire before they are granted.
A severe lack of patent examiners is nothing new.
[1] International Business Machines Corporation v Commissioner of Patents. 8 July 1991, 9 July 1991, 13 December 1991. 33 FCR 218. I can't find a copy online.
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From my point of view the problem with ACTA is no different to my problem with patents in general, it is the province of the wealthy (individual or corporation) If you have enough money "All of your patent are belong to us". The reason for the secrecy is the same as it always is, they want the law in place before anybody has the chance to oppose it.
I was in conversation with an IP lawyer yesterday who was asked by a friend of mine if it was worth patenting a process he and his partner had developed, what he said was interesting.
To be granted a patent you have to divulge your process which allows others, with more power than you will ever have, access to your work. If they infringe your patent you are fucked. If, on the other hand you just keep it a secret then you are a lot less likely to have your process nicked. You are better off developing your "Brand" in terms of reliability, quality and uniqueness rather than trying to be protected by law. This is why we, as a small Nation, do not need this trade agreement, what we need to do is develop and protect our reputation (ie, no bloody mining in conservation areas thank you very much). We do not need this agreement to prove that something claiming to be from NZ is or is not, the genuine article. -
Don't you just love it when an industry says 'no' but the lawyers still want to shove something down your throats?
I'm obvisouly getting too old but I consider 1991 and 1995 pretty recent, even in software terms. This experiement with patents where they should not been allowed has been a complete waste of time and money, as Rich's last post amply demonstrates.
The "lawyerly trick" quote comes from a Federal District Court Judge in the USA who has just made a ruling that genes cannot be patented. Similar arguments apply:
http://opensource.com/law/10/4/gene-patenting-and-free-software-breakthrough
Why does this relate to ACTA? Because NZ is finding its own way through the software patent mire but ACTA would remove our right to do that.
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Don't you just love it when an industry says 'no' but the lawyers still want to shove something down your throats?
Don, I joined this conversation in good faith. My intention was no more than to offer up a few clarifications based on my knowledge and experience from inside the patent industry. I'm not particularly interested in shoving anything down anyone's throat.
But if you're going to be a dick about it, then I think that this is the point at which I bow out.
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But if you're going to be a dick about it, then I think that this is the point at which I bow out.
Whatever.
The case was proven to the Select Committee and Minister. You and Scotty seemed to disapprove. And yet I still see no compelling argument that stacks up in your favour. Failing to see this is hardly being a "dick". All I am doing is asking for some evidence of good.
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Without wishing to inflame another copyright war in a thread where we have good stories to celebrate, IP lawyer Guy Burgess's recent column about software patents seems relevant (h/t Colin Jackson).
So, in the main, it appears that those unhappy about the decision are limited to the local subsidiaries of major international patent holders, their association (NZICT), and their local business partners. Their opposition is understandable. There are certainly some advantages to software patents to existing holders – but there are more disadvantages and other reasons not to allow them.
Banning software patents will align New Zealand with the European Union and remove a significant threat to the local industry. The general unavailability of software patents in the EU does not seem to have held back the IT sector in that region (or indeed the development of the internet itself). No compelling arguments have been put forward to indicate that New Zealand will somehow have a different experience after the new law takes effect. Instead, as the Select Committee unanimously found and the Government has agreed, the removal of software from patentability is a positive move, and one that has support across New Zealand’s IT industry.
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To be granted a patent you have to divulge your process which allows others, with more power than you will ever have, access to your work. If they infringe your patent you are fucked. If, on the other hand you just keep it a secret then you are a lot less likely to have your process nicked. You are better off developing your "Brand" in terms of reliability, quality and uniqueness rather than trying to be protected by law.
I've moved on from the whole software patent good/bad thing, but I do need to make some effort to defend the patent system as a whole.
I agree that in some cases trade secret protection is the better way to go. Unfortunately, there are some inventions that you just can't usefully keep secret - the moment you release them to the public your competitors can easily work out how to copy them. This goes for the majority of mechanical inventions.
It can be expensive if you're a small business trying to enforce your patents. On the other hand, if you're trying to attract venture capital fundng to expand your business and your main asset is IP, and if you haven't properly protected your IP, you may struggle to attract VC cash.
That doesn't mean I or other IP lawyers think patents are the be-all and end-all. But I wouldn't dismiss them out of hand. I have plenty of clients making money off their patent portfolios, and they're not just the big corporates.
I know of a few IP lawyers who don't practice in the area of patents, and who don't understand their potential value. This is because patent law is highly specialised, and there aren't many outside the specialist IP firms who understand patents or patent law. A good IP lawyer or patent attorney will understand all the options available and will be able to work out the best way to protect and exploit someone's innovation. Sometimes patents are the answer. Sometimes it's copyright, or a registered design, or trade secret protection. Sometimes it's a combination.
I agree with you that branding is always important, and if you're thinking globally and haven't got trade mark protection for you brand then you'll probably always struggle.
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Shooting at Gerald Mc...
nice to see Cory Doctorow, at Boing Boing,
and Russell Brown, at PAS, on the same page...
all hail the ACTA-vists
and vistas beyond... -
Unfortunately, there are some inventions that you just can't usefully keep secret - the moment you release them to the public your competitors can easily work out how to copy them.
This particular conversation was about a process rather that a product, unless your competition wanders around your factory and poking his nose in nook and crannies where no nose should go then he would no nothing of the process itself. If we were talking about a manufacturing machine built to market then I would agree wholeheartedly.
The Patent process specifically refers to manner of manufacture rather than the product itself, or am I reading that wrong? so are we talking about process rather than product?
This case in point is that they can extract a valuable substance at a far lower cost than their competition. This would seem to be exactly what patents were designed for but as I said, it is no real protection, without going to a great deal of legal expense, against a very wealthy competitor.
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For the purpose of examining patents, it is assumed that the innovative step must not be obvious to an expert in the field.
Which is why software patent fall outside simple mechanical patent. If the innovative step is not obvious to an expert in the field it must be illogical and therefore a non functioning routine or a routine specifically designed to circumvent existing software patent and as such a complete nonsense.
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Patents can protect processes as well as products. But it is quite common to treat a manufacturing process as a trade secret, rather than seek patent protection for it.
A granted patent over the process would prevent competitors from exploiting it (assuming you enforce your rights - though don't underestimate the deterrent effect a patent or patent application has on potential infringers). But the trade-off is that details of your process get published.
In some cases, where you think you can keep the process a secret, it makes sense to rely on trade secret protection. An obvious example is the Coca Cola formulation. If they'd patented it back in the day everyone would have known how to make it decades ago, and there would have been no protection for it once the patent expired.
So trade secrets are often a good strategy - but only if you can prevent leaks, and if others can't figure out what you've done.
If there's a risk competitors will work out how the process works, then patent protection may be the way to go. As I said, don't underestimate the deterrent effect of a patent or patent application. And as I said in my earlier comment, many venture capital investors won't put money into an invention that isn't properly protected.
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