New Zealand To Ban Software Patents 'As Such'; Tries To Pin Down What On Earth That Means

from the can-we-just-pass-a-law-now? dept

Few patent sagas have been as fraught as New Zealand's attempt to revise its laws to exclude software. Techdirt first wrote about this move in March 2010, and again in June 2010, when it seemed that lobbyists had convinced the New Zealand government to reverse its position and allow software patents. Then, a month after that, word was that software would indeed be unpatentable. Things went quiet for a while, until a new version of the proposed law was unveiled by New Zealand's Commerce Minister Craig Foss, apparently weakening the bill once more:

His amendment has changed some crucial wording in the bill that some say has the government moving away from excluding software from being patented (as per select committee recommendations), to parts of the bill being sufficiently vague that software may indeed become patentable. Clause 10a of the supplementary order paper 120 was amended to read: "..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"
The two words "as such" tacked on at the end there are precisely the same as those that are found in Article 52 of the European Patent Convention that also excludes software patents:
(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.
As that makes clear, "programs for computers" are not regarded as inventions, and are therefore ineligible for software patents in Europe. But that only applies to programs "as such": the trouble is, nobody really knows what those two words mean in this context, which has allowed lawyers to obtain thousands of software patents in the EU on the grounds that they weren't software patents "as such".

The appearance of precisely these same two words in the draft of New Zealand's patent law was naturally deeply troubling for the local software industry, since they threatened to provide a way to circumvent the ban as they had in Europe. And so another round of lobbying began, as reported here by Guy Burgess in an informative post on the subject:

The local IT community mounted a concerted pushback on the unclear "as such" amendment. An industry petition (backed by key groups IITP, InternetNZ, NZRise and NZOSS) was set up and gained wide support. The petition called on the Government to remove the ambiguous "as such" language, and replace it with a simpler clause that clarified the underlying intention. Labour's Clare Curran adopted the petition's proposed alternative clause as an official proposed amendment to the Patents Bill, and other MPs and parties, including United Future MP Peter Dunne, also raised concerns about the lack of clarity in the Bill.

To its credit, and thanks to the concentrated efforts of many people and not inconsiderable political pressure, the Government decided to take another look at the Bill and has now put forward a new amendment.
The section dealing with software in the most recent version of the Patents Bill (pdf) still includes the vexed words "as such", but it now tries to clarify what exactly they mean here:
Helpfully, it adds two examples into the Bill - one for a software patent application which may be granted, and one which should be declined. Examples in legislation are a good way to demonstrate how a section is intended to be interpreted. The "valid" example is of a washing machine that uses embedded software.... The "invalid" example is of a software process for automating company incorporation. It includes the key comment: "The mere execution of a method within a computer does not allow the method to be patented."

Importantly, the explanatory note has been enhanced to make the intention of the Bill very clear, including the following comments: "... where the actual contribution of an invention lies solely in it being a computer program, it is ineligible for patent protection... it will not be possible to obtain a patent for an invention that involves or makes use of the computer program if the sole inventive feature is that it is a computer program".
Given all the problems with the phrase "as such", it would have been easier to omit it completely, rather than resort to well-meaning but necessarily limited attempts to clarify it through examples. Burgess offers an interesting explanation of why that didn't happen:
It appears that the concern was whether doing so would open New Zealand up for a legal challenge for allegedly not meeting its TRIPS treaty obligations. By aligning the law with wording from another jurisdiction [the EU] that hasn't been challenged, it provided some comfort that New Zealand would be safe. Whether or not this would have happened is moot now - it was a significant enough concern to the powers that be for the above approach to be adopted.
That's certainly a fair point; let's hope it means that the latest wording won't need changing again, and that the updated bill banning software patents finally gets passed.

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Filed Under: new zealand, patents, software patents

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  1. icon
    DannyB (profile), 9 May 2013 @ 2:29pm

    If the meaning of "as such" is fuzzy

    If the meaning of "as such" is fuzzy, then can it be construed to mean anything that is patented?

    Hey this patent on a new toaster, the toaster has software, so it must be a software patent.

    Maybe anything with a microprocessor can be no longer patentable.

    reply to this | link to this | view in thread ]

  2. icon
    Wally (profile), 9 May 2013 @ 2:37pm

    Clause 10a of the supplementary order paper 120 was amended to read: "..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"

    Basically anything that relies on computer code can be patented, but non-phyical things in it such as the software that runs the device cannot be patented.

    reply to this | link to this | view in thread ]

  3. icon
    Wally (profile), 9 May 2013 @ 2:43pm


    Note that is my translation of the proposal to the amendment to section a10....basically all it is saying is that the current language of the law prohibits development of new product...namely this pertains to software running the products.

    "As such" is being used to place emphasis on the idea that proposed law covers everything to do with getting rid of all types of software patents.

    reply to this | link to this | view in thread ]

  4. icon
    TheLastCzarnian (profile), 9 May 2013 @ 3:03pm

    Hard to pin down

    I still don't understand the difference between a cooking recipe, a chemical process, and a pharmacutical formula, except that you can patent the last two and not the first one.

    Just eliminate patents already!

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 9 May 2013 @ 3:34pm

    Re: Re:

    Probably the intended way of reading it. If you look at the precedent in europe of the "as such":

    "According to the jurisprudence of the Boards of Appeal of the EPO, a technical effect provided by a computer program can be, for example, a reduced memory access time, a better control of a robotic arm or an improved reception and/or decoding of a radio signal. It does not have to be external to the computer on which the program is run; reduced hard disk access time or an enhanced user interface could also be a technical effect."

    Basically software patents are legal since "as such" is interpreted as a very specific condition, making software patents legal if sufficient "further technical effects" is met as a requirement. As such is therefore seen as just a little higher hight of innovation than what is standard...

    reply to this | link to this | view in thread ]

  6. icon
    Duke (profile), 10 May 2013 @ 12:28am

    Re: Hard to pin down

    Under the EPC rules, I don't see why you wouldn't be able to patent a cooking recipe.

    Provided, of course, it was sufficiently novel/inventive, and of industrial application.

    reply to this | link to this | view in thread ]

  7. icon
    nospacesorspecialcharacters (profile), 10 May 2013 @ 2:30am

    Chewbacca is a Wookiee from Kashyyyk, but Chewbacca lives on Endor

    Really pathetic.

    Perhaps, rather than allowing lawyers to make mountains of money out of grammatical molehills, a better method of identifying something patentable is to simply have to present it physically.

    If you can only describe something in order to obtain a patent it is not an "invention" it is an abstract concept or an "idea". Ideas were never intended to be patentable subject matter, yet because fools have issued patents for such, then here we are paying people to squabble over rhetoric and semantics.

    Anyone can do that, just look at the title of my comment - it does not make sense! If Chewbacca lives on Endor, then you can ignore this comment entirely, as such.

    reply to this | link to this | view in thread ]

  8. icon
    midofo (profile), 10 May 2013 @ 3:50am

    The Fisher and Paykel clause

    Gee this sounds like the government is creating the Fisher and Paykel exemption to software patents. . Strange that considering they are a kiwi company (or were).

    reply to this | link to this | view in thread ]

  9. icon
    special-interesting (profile), 10 May 2013 @ 8:09am

    Yeah for New Zealand! Always thought that software patents are 200 years too early or even a never viable concept. Code is already covered under the already overpowering copyright monopoly.

    Intent is all fine and nice but its the unintended meanings that can slip in when loosely worded law is endorsed/accepted/used. In the US its already a huge constitutional problem that many agencies have secret interpretations of loosely written legislation.

    The term/phrase “as such” is unknown presently and can not be defined. The danger is that language and individual word meanings change over time and some new definition might pop up. Its so loosly applied its easy to just stick it onto the end of any statement without it overtly changing the meaning/gist/idea of the sentence “as such”.

    The reverse might also be true? Adding the phrase “as such” onto the end of a sentence/thought/idea/meaning might also mean that there was more implied than just what was conveyed. If the phrase “as such” is added then what if another idea/thought/meaning “wasn't such”? Do we look deeper into the sentence to define “such”?

    If we don't let “it” out of the bag “as such” the how about when “it” “is not such”? The real hoodwink (bag over the head) would be defining what “such” is. Judging from the integrity of the groups that fornicate such wording its likely to become some 'gotcha' clause.

    To point; A possible angle of any software applicant (however obvious) might be to say that their method was NOT a software patent. That its “wasn't such”.

    Note; this essay kinda merged into/with another so see this article to fully grasp the idea “as such.” nster-inside-free-trade-agreements-begins-to-stir.shtml

    reply to this | link to this | view in thread ]

  10. identicon
    Bryan O'Doyle, 10 May 2013 @ 9:13am

    I did not have sex with that woman *AS SUCH*

    reply to this | link to this | view in thread ]

  11. identicon
    Bryan O'Doyle, 10 May 2013 @ 9:23am

    Here's the speeding ticket which mentions a fine of $147.oo,
    and please find enclosed a fiver. That is as such, a payment of the fine. The ticket, as such, has been paid. Right yer honour? AM I RIGHT Yeah? Fucker.

    reply to this | link to this | view in thread ]

  12. identicon
    Katie, 10 May 2013 @ 5:09pm

    Software patents away!

    See this computer program I'm filing a software patent for? It doesn't JUST exist as a computer program - it actually does something useful! Therefore, it may be patented. Ta-da!

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 10 May 2013 @ 10:55pm

    Re: Re: Re:

    The algorithm used for nVidia's FXAA iteration is a very good example ;-)

    reply to this | link to this | view in thread ]

  14. icon
    Jesse McDonald (profile), 28 Aug 2013 @ 12:55pm

    Rather than spend ages trying (and failing) to define exactly what makes software patents different from other kinds of patents, I would just declare that software, and abstract mathematical transformations in general, cannot infringe any patent, whether in their inert form, e.g. a program stored on a hard drive or distributed to others as data, or in the act of being evaluated (on a computer or otherwise).

    You could still infringe on a patent for something that incorporates software, just not on the basis of using the same or equivalent software. This would eliminate the threat of software patents without creating concerns about unintended consequences for non-software patents.

    reply to this | link to this | view in thread ]

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