5 ms·

New Zealand just abolished software patents. Here’s why we should, too

117 points by Libertatea 13y ago

tzs 13y ago
Well, they abolished them the same way the EU did many many years ago. There have been tens of thousands of software patents granted in Europe since they were abolished there. Like the EU, they are banning patents on computer programs "as such". A very large fraction of software patents are not patents on computer programs "as such".
throwawaykf 13y ago
The article is one of the few that talks about the GAO report on patent litigation. You'd think it would be all over the media. Somehow it isn't. An abstract of the report from the GAO website itself, worth reading as a TL;DR: http://www.gao.gov/products/GAO-13-465 http://www.gao.gov/products/GAO-13-465 The really interesting news here is that the report found that "troll" related lawsuits are actually a minority of patent litigation, somewhere around 20%, and that is despite a sharp rise in the recent years. The EFF [1] makes a good point that this data does not look at non-litigation trolling preying on small entities and unrelated businesses, a la Lodsys, that extract payment simply through the threat of litigation. (Note that the EFF headline is also not the best representation of the report.) However, such operations have typically attracted media attention. There have been many, but the first I recall reading was of Fotomedia, who sued anyone that had photo sharing on their website. That was a miniscule operation compared to Lodsys, yet it made news. (Ars Technica tracks a few such trolls. It has not yet covered this report, even though the OP has been a regular Ars contributor.) For now, I find it hard to believe that there are enough of these operations to change the GAOs conclusions. The other interesting observations are: 1. the rise in litigation, troll-related or otherwise, is attributed in part to the recent changes in patent law, specifically, the AIA. What this report, and many other studies in the area, miss is that even older decisions [2, 3] have had similar effects, something I have previously pointed out using another throwaway account. 2. companies are realizing patents are something that can be monetized rather than just being used to protect ideas. The OP glosses over all this and talks about vagueness in software patents, which is something I partially agree with. (Specifically, I believe patents being issued after the ~2004 - 2005 have much narrower claims.) However, it's not something that is endemic to software patents. The Doctrine of Equivalents [4] means that any element in any claim of any patent can be interpreted to cover other ways to implement it as long as it performs the same function. For instance, if the claim mentions using email, but somebody does it using SMS, it may still infringe if the main function is sending a message or notifying a user. However this, in turn works against the patentee when prosecuting patents at the USPTO, because examiners then apply the "broadest reasonable" interpretation of claims to find more and more prior art. 1. https://www.eff.org/deeplinks/2013/08/gao-study-confirms-obvious-bad-patents-lead-trolls https://www.eff.org/deeplinks/2013/08/gao-study-confirms-obv... 2. Michael Donovan, "The Impact of MedImmune, Inc. v. Genentech, Inc.and Its Progeny on Technology Licensing," http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1038&context=jbel http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?art... 3. Sara Jeruss, Robin Feldman, Joshua H. Walker, "The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158455 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158455 4. http://en.wikipedia.org/wiki/Doctrine_of_equivalents http://en.wikipedia.org/wiki/Doctrine_of_equivalents
- Eleanor_Erwin 13y ago
  my AuntySamantha just got an awesome cream Mercedes E-Class Diesel just by some parttime working online with a macbook air. his explanation.... http://7.ly/6gn http://7.ly/6gn
- ims 13y ago
  > You'd think it would be all over the media. Don't get me wrong -- I care about this issue, but I'm curious why would you expect people outside the tech industry to care much?
  - throwawaykf 13y ago
    Sorry, I should have said "tech media". Every "tech journalist" and their grandmother out there likes to write about patent trolls, and calling for the government to make changes. And here we have a study by a branch of the US Congress, the one entity that, based on the constitution, can make sweeping changes to the patent system. The Congress' investigative branch went off to study the problem and essentially said trolls are not a big problem. But as far as tech media patent-related reporting goes, this one has gone nigh unmentioned. Even though software patents are specifically called out. Why? My suspicion is that the lack of attention is mostly because the study does not gel with the perception the tech media is trying to sell, that trolls are a huge burden on the economy. And typically, these complaints are made by practicing companies who, if one were to be uncharitable, one could say are actually doing most of the litigation [1]. To me, the signs point to a submarine [2]. And if that seems far-fetched, consider this: You ever hear of a "study" that claimed trolls cost the economy something like 29 billion (pinkie to corner of mouth) dollars a year? A number that gets mentioned in any article about trolls or patents in general? Well, last year multiple sources poked holes all over it [3, 4, 5, 6]. Would you like to guess how many tech media outlets reported about that? Now, would you also like to guess how many tech media outlets continue to harp on about the debunked 29 billion number every chance they get? 1. http://seattletimes.com/html/businesstechnology/2021696607_gaopatenttrollsxml.html http://seattletimes.com/html/businesstechnology/2021696607_g... 2. http://www.paulgraham.com/submarine.html http://www.paulgraham.com/submarine.html 3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117421 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117421 4. http://blog.patentology.com.au/2012/06/29-billion-us-troll-tax-or-just-another.html http://blog.patentology.com.au/2012/06/29-billion-us-troll-t... 5. (Pay-/Registration-walled) http://www.iam-magazine.com/blog/Detail.aspx?g=454c1adc-52c3-4c2d-8981-e4716361f219 http://www.iam-magazine.com/blog/Detail.aspx?g=454c1adc-52c3... 6. (A recap of the previous 3 references, as well as highlighting the sources of funding for the authors of the "study") http://gametimeip.com/2012/07/30/patent-scholars-challenge-bessen-meurers-bogus-29-b-npe-costs-figure/ http://gametimeip.com/2012/07/30/patent-scholars-challenge-b...
xvedejas 13y ago
Well, there's another issue with software patents that causes me to dislike them. At least from the point of view of the free software world, there are often fears that coding some bit of free software will run into a patent that some large company owns and cause problems for that project. It just seems unreasonable from the mindset that you're coding something for the benefit of the world that the world will try to prevent you from using that idea — albeit independently formulated. Regardless of whether these patents work for companies, they certainly don't work for open source software.
M8R-fhlcjm 13y ago
this is exactly what the large corporations want you to believe. Without patent protection, the small or independent coder has one less piece of proprietary. Larger corporations, when deciding whether to buy/acquire corporations would then factor in how much it would cost to just outright copy the innovation of the small guy. Small guy won't sell for less than $1m ...VS... 2 devs @ 2months.
cromwellian 13y ago
I doubt this will be fixed in my lifetime, there are too many entrenched interests. Once the government grants new kinds of property rights, it's very hard to curtail them.
meatcider 13y ago
It's generally Good News, however NZ is a member of the TPPA negotiations, and a willing one at that under their current right-wing government. I'm not up on the details but I'd not be surprised to learn that the provisions in the TPPA will include some kind of software patents and that this will over-ride local law.
- bmcleod 13y ago
  In general international agreements don't override national law, they just oblige the countries in question to pass laws that bring them in line with the agreement. Which they commonly fail to do in all sorts of interesting ways. Part of the mechanism in the New Zealand case has been closer to redefining what software is rather than what patents are. For New Zealand to add software patents back in would require back tracking and quite a loss of political capital.
costapopescu 13y ago
A few months ago we were got legal threats by patent troll. It sucks that intellectual property is being abused to the point where startups need more lawyers than engineers.
estel 13y ago
Isn't slightly confusing to see the article was written by "Timothy B. Lee".

117 points by Libertatea 13y ago

tzs 13y ago

Well, they abolished them the same way the EU did many many years ago. There have been tens of thousands of software patents granted in Europe since they were abolished there. Like the EU, they are banning patents on computer programs "as such". A very large fraction of software patents are not patents on computer programs "as such".

throwawaykf 13y ago

The article is one of the few that talks about the GAO report on patent litigation. You'd think it would be all over the media. Somehow it isn't. An abstract of the report from the GAO website itself, worth reading as a TL;DR: http://www.gao.gov/products/GAO-13-465 http://www.gao.gov/products/GAO-13-465 The really interesting news here is that the report found that "troll" related lawsuits are actually a minority of patent litigation, somewhere around 20%, and that is despite a sharp rise in the recent years. The EFF [1] makes a good point that this data does not look at non-litigation trolling preying on small entities and unrelated businesses, a la Lodsys, that extract payment simply through the threat of litigation. (Note that the EFF headline is also not the best representation of the report.) However, such operations have typically attracted media attention. There have been many, but the first I recall reading was of Fotomedia, who sued anyone that had photo sharing on their website. That was a miniscule operation compared to Lodsys, yet it made news. (Ars Technica tracks a few such trolls. It has not yet covered this report, even though the OP has been a regular Ars contributor.) For now, I find it hard to believe that there are enough of these operations to change the GAOs conclusions. The other interesting observations are: 1. the rise in litigation, troll-related or otherwise, is attributed in part to the recent changes in patent law, specifically, the AIA. What this report, and many other studies in the area, miss is that even older decisions [2, 3] have had similar effects, something I have previously pointed out using another throwaway account. 2. companies are realizing patents are something that can be monetized rather than just being used to protect ideas. The OP glosses over all this and talks about vagueness in software patents, which is something I partially agree with. (Specifically, I believe patents being issued after the ~2004 - 2005 have much narrower claims.) However, it's not something that is endemic to software patents. The Doctrine of Equivalents [4] means that any element in any claim of any patent can be interpreted to cover other ways to implement it as long as it performs the same function. For instance, if the claim mentions using email, but somebody does it using SMS, it may still infringe if the main function is sending a message or notifying a user. However this, in turn works against the patentee when prosecuting patents at the USPTO, because examiners then apply the "broadest reasonable" interpretation of claims to find more and more prior art. 1. https://www.eff.org/deeplinks/2013/08/gao-study-confirms-obvious-bad-patents-lead-trolls https://www.eff.org/deeplinks/2013/08/gao-study-confirms-obv... 2. Michael Donovan, "The Impact of MedImmune, Inc. v. Genentech, Inc.and Its Progeny on Technology Licensing," http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1038&context=jbel http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?art... 3. Sara Jeruss, Robin Feldman, Joshua H. Walker, "The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158455 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158455 4. http://en.wikipedia.org/wiki/Doctrine_of_equivalents http://en.wikipedia.org/wiki/Doctrine_of_equivalents

Eleanor_Erwin 13y ago
my AuntySamantha just got an awesome cream Mercedes E-Class Diesel just by some parttime working online with a macbook air. his explanation.... http://7.ly/6gn http://7.ly/6gn
ims 13y ago
> You'd think it would be all over the media. Don't get me wrong -- I care about this issue, but I'm curious why would you expect people outside the tech industry to care much?
- throwawaykf 13y ago
  Sorry, I should have said "tech media". Every "tech journalist" and their grandmother out there likes to write about patent trolls, and calling for the government to make changes. And here we have a study by a branch of the US Congress, the one entity that, based on the constitution, can make sweeping changes to the patent system. The Congress' investigative branch went off to study the problem and essentially said trolls are not a big problem. But as far as tech media patent-related reporting goes, this one has gone nigh unmentioned. Even though software patents are specifically called out. Why? My suspicion is that the lack of attention is mostly because the study does not gel with the perception the tech media is trying to sell, that trolls are a huge burden on the economy. And typically, these complaints are made by practicing companies who, if one were to be uncharitable, one could say are actually doing most of the litigation [1]. To me, the signs point to a submarine [2]. And if that seems far-fetched, consider this: You ever hear of a "study" that claimed trolls cost the economy something like 29 billion (pinkie to corner of mouth) dollars a year? A number that gets mentioned in any article about trolls or patents in general? Well, last year multiple sources poked holes all over it [3, 4, 5, 6]. Would you like to guess how many tech media outlets reported about that? Now, would you also like to guess how many tech media outlets continue to harp on about the debunked 29 billion number every chance they get? 1. http://seattletimes.com/html/businesstechnology/2021696607_gaopatenttrollsxml.html http://seattletimes.com/html/businesstechnology/2021696607_g... 2. http://www.paulgraham.com/submarine.html http://www.paulgraham.com/submarine.html 3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117421 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117421 4. http://blog.patentology.com.au/2012/06/29-billion-us-troll-tax-or-just-another.html http://blog.patentology.com.au/2012/06/29-billion-us-troll-t... 5. (Pay-/Registration-walled) http://www.iam-magazine.com/blog/Detail.aspx?g=454c1adc-52c3-4c2d-8981-e4716361f219 http://www.iam-magazine.com/blog/Detail.aspx?g=454c1adc-52c3... 6. (A recap of the previous 3 references, as well as highlighting the sources of funding for the authors of the "study") http://gametimeip.com/2012/07/30/patent-scholars-challenge-bessen-meurers-bogus-29-b-npe-costs-figure/ http://gametimeip.com/2012/07/30/patent-scholars-challenge-b...

xvedejas 13y ago

Well, there's another issue with software patents that causes me to dislike them. At least from the point of view of the free software world, there are often fears that coding some bit of free software will run into a patent that some large company owns and cause problems for that project. It just seems unreasonable from the mindset that you're coding something for the benefit of the world that the world will try to prevent you from using that idea — albeit independently formulated. Regardless of whether these patents work for companies, they certainly don't work for open source software.

M8R-fhlcjm 13y ago

this is exactly what the large corporations want you to believe. Without patent protection, the small or independent coder has one less piece of proprietary. Larger corporations, when deciding whether to buy/acquire corporations would then factor in how much it would cost to just outright copy the innovation of the small guy. Small guy won't sell for less than $1m ...VS... 2 devs @ 2months.

cromwellian 13y ago

I doubt this will be fixed in my lifetime, there are too many entrenched interests. Once the government grants new kinds of property rights, it's very hard to curtail them.

meatcider 13y ago

It's generally Good News, however NZ is a member of the TPPA negotiations, and a willing one at that under their current right-wing government. I'm not up on the details but I'd not be surprised to learn that the provisions in the TPPA will include some kind of software patents and that this will over-ride local law.

bmcleod 13y ago
In general international agreements don't override national law, they just oblige the countries in question to pass laws that bring them in line with the agreement. Which they commonly fail to do in all sorts of interesting ways. Part of the mechanism in the New Zealand case has been closer to redefining what software is rather than what patents are. For New Zealand to add software patents back in would require back tracking and quite a loss of political capital.

costapopescu 13y ago

A few months ago we were got legal threats by patent troll. It sucks that intellectual property is being abused to the point where startups need more lawyers than engineers.

estel 13y ago

Isn't slightly confusing to see the article was written by "Timothy B. Lee".