Land of long white cloud sees through the fog

An end to embedded software patents

By Rick Jelliffe
July 16, 2010

Dawn comes first in New Zealand!

From the New Zealand governments Beehive.govt.nz website:

Commerce Minister Simon Power has instructed the Intellectual Property Office of New Zealand (IPONZ) to develop guidelines to allow inventions that contain embedded software to be patented. ... When the Commerce Committee reported the bill back to Parliament in March it recommended that computer programs not be a patentable invention.

During its consideration of the bill, the committee received many submissions opposing the granting of patents for computer programs on the grounds it would stifle innovation and restrict competition.

It also considered that companies investing in inventions involving "embedded" computer programs should be able to obtain patent protection for these inventions.

The committee and the Minister accept this position.

Well done New Zealand! How can any peripheral country hope to maintain or get a viable software industry under the current regime, with large, mainly US companies such as IBM and Microsoft patenting as much as they can, not with the aim of necessarily exploiting these inventions, but in order to block out competitors, block patent trolls, or to have collateral that can be used for cross-license protection. Even a move to the old Japanese system (which did them so well in the 70s and 80s) where a patent lapsed if it had not been exploited within a very few years (was it 3 years, and 7 years max?) would be better.

In this blog I have described several examples where there seemed to patents on Schematron, which I developed a decade ago: how can you patent something after it has been published as an ISO standard? The US patent system is in such complete discredit (well, to everyone except laywers, trolls, pro-monopoly right-wingers, and employees of mainly US patent-holding companies) that even if someone does consider software patents in a positive light in the abstract, they should be hard-pressed to say how the current overworked, under-critical regime is delivering the purported benefits. The .COM bubble burst because companies managed to get over-valued based on their shonky patent portfolios: software patents encourage speculation.

As The Economist said in 1851

The granting [of] patents 'inflames cupidity', excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits...The principle of the law from which such consequences flow cannot be just.

It was a respectable opinion then, and nothing has stopped this. Speaking of Adam Smith (follow the last link to see the connection), his famous quote from the Wealth of Nations

"Adam Smith wrote in 1776 in The Wealth of Nations, "People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices".

makes me think not of standards bodies, but of patent cross-licensing arrangements.

US Congressman Conyers says ""American technological leadership . . . probably would not have emerged without patent protection" , but why would any country outside the G8 not put two and two together: if the US patent regime creates and maintains US 'leadership', it also to some extent must create and maintain non-US 'followship'.


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