Wednesday, September 5, 2012

The Software Patent Issue As I Understand It

The patent system is broken. It's outdated. For software and it's fast advancements, the patent system makes no sense whatsoever. The patent system seeks to advance technology/inventions by granting the inventor a limited monopoly on that invention. But 20 years is ridiculous in a software world.

The effect? Stifled technology. Submarine patents (patents that are never acted upon until someone else tries to use something that sounds like that patent) drive up the cost of development. The risk and uncertainty around development just makes patents nasty.

So in New Zealand we had thrown up our arms in victory over a sensible move - to exclude computer programs/software from patentability. The amendment got wide industry support, including from New Zealand's biggest software exporter.

Fisher and Paykel had a concern - that this exclusion could potentially get a bunch of their patent applications thrown out because they included embedded systems. Lawyers for Microsoft and other international big players were still pressuring the government but it seemed good sense was prevailing.

Change of economic ministers and just a year later, 2 simple words - 6 letters, has caused an uproar. The words? "As such".
10A Computer programs
(1) A computer program is not an invention for the purposes of this Act.
(2) Subsection (1) 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.
What do those 2 little words do? They create a great big giant loophole - big enough that the paper that "10A" is written on is worth more than the clause itself. How do we know this? Because it happened in Europe. We can see the effect of it. We know it's a great big mistake. It creates confusion which of course, leads to administration costs (while feeling your way around what is patentable and what isn't and defending or enforcing such patents is likely to leave everyone with a headache).

The battle is on - a week to make changes. The lawyers for those international concerns, trying to push it their way. Local developers... there's been a mammoth effort to start a petition with cross interest support. i.e. It should not be just Open Source advocates but those who want to be able to develop software without the fear of litigation over what are normally vaguely termed and horribly inclusive "specifications".

Why don't we need software patents? Because software is already adequately protected under copyright. I can not copy a program without permission from the copyright holder to do so. My implementation of a feature is going to be different from someone else's unless it's obvious (in which case, can't/shouldn't be granted a patent anyway). And the way of getting there is probably going to be quite different. i.e. A customizable deployment system for Linux could take into account the users or a system administrator and although they may look quite similar, probably take different concerns into account.

Have doubts that software patents are ridiculous? Check out:
These aren't fringe cases. Microsoft are the original assignees in most (all?) of those cases. So considering that's part of only one company's portfolio, imagine how many other ridiculous software patents are out there.

I remember reading a story last year about a person who was using accessibility software on their iPad for a child who was otherwise unable to communicate. The software was taken down as it violated another company's patents. The other company had a competing piece of software (something ridiculous like 5 times the price of the first piece of software) that didn't fulfil their needs. It was a fringe case but it did add a human face to it.

So about that petition then.... At the time of writing, it has 600 co-signers. Considering the size of the developer community in New Zealand, this isn't bad. Especially given that it's only been open for 2 days...

No comments:

Post a Comment