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Topic # 108436 29-Aug-2012 13:29 Send private message

Both an interesting article on Stuff about the latest changes to the Patents bill somewhat backtracking on the original provisions regarding computer programs not being an "invention" - see here and also yet another example of Stuff's sloppy proofreading:

The abolition of software patents has become something of a "cause celebre" for large tracks of the information technology industry because of concerns they have primarily been used......

tracks???? you mean tracts - AAAGH

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  Reply # 678725 29-Aug-2012 13:42 Send private message

It's a terrible idea.

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Ultimate Geek
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  Reply # 678733 29-Aug-2012 13:53 Send private message

As a result of political pressure from the USA?

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  Reply # 678740 29-Aug-2012 14:06 Send private message

More info here:

http://en.swpat.org/wiki/IBM_and_MS_deciding_New_Zealand_legislation

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  Reply # 678754 29-Aug-2012 14:24 Send private message

*Sigh* For a really easy to read rundown of why this is a terrible idea, try this:

http://www.npr.org/blogs/money/2011/07/26/138576167/when-patents-attack



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  Reply # 678866 29-Aug-2012 17:33 Send private message

sidefx: *Sigh* For a really easy to read rundown of why this is a terrible idea, try this:

http://www.npr.org/blogs/money/2011/07/26/138576167/when-patents-attack


That's really quite depressing reading...

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Geek
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  Reply # 685745 13-Sep-2012 18:37

This is a response I made in reply to an article on Stuff. I am happy to discuss the issues and answer any questions I can.

My views are my own and don't necessarily represent those of the Intellectual Property Office.

I have read and heard so much misinformation in the media and in Parliament that I thought I would chime in with my own opinion.

Trademarks protect trade dress (brands, logos, etc.)

Copyright is typically used to enforce protection of works of literary or artistic nature. To show copyright infringement you must show causal connection (i.e. that someone started with your thing in mind and copied it to arrive at their thing) - this is an extremely high bar and woefully inadequate protection for anything more complicated than a potato peeler.

Patents are completely distinct from Trademarks and Copyright.  Patents protect a (novel) solution to a problem.

In order to be patentable and considered an invention there must be a 'manner of new manufacture'. The most useful test and clarification for what is meant by manner of new manufacture comes from an Australian case NRDC v Commissioner. An invention must produce 'an artificially created state if affairs' - there must be some tangible real world result from the invention. Applications for software related inventions are additionally required to make a computer operate in a new way, make the computer operate more reliably or faster and they must solve a problem rather than merely circumvent it.

In my opinion the inclusion of "as such" does not have as great an effect as people believe. It is my understanding that the commonly framed software claim i.e. a ‘computer implemented method’ which meets the above criteria and all other requirements for patentability is allowable under the old act and new irrespective of whether the 'as such' qualifier is included. I can tell you, contrary to what most think, the ‘as such’ clause would mean less litigation not more. It provides a much clearer line in the sand for Applicant’s, Examiners and Attorneys (in the form of 30years worth of legal tests and case law from the UK and Europe).

A much more significant issue and one that gets almost no press time is the new inventive step requirement. Under the new act patent applications (including software related inventions) will be examined not only for novelty but for inventive step. This is huge. For a patent to be granted, now not only you have to be the first person to do something, you also have to show that you are making a non-obvious, inventive contribution to the art. This is the single biggest factor that will help preventing the grant of ‘bad’ patents and stifle patent trolls. The sooner the new bill passes the better.

Matthew Nagel
BE(Hons) - Mechatronics
Patent Examiner for the Commissioner of Patents, Trademarks and Design

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Geek
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  Reply # 685816 13-Sep-2012 22:26

allan:
sidefx: *Sigh* For a really easy to read rundown of why this is a terrible idea, try this:

http://www.npr.org/blogs/money/2011/07/26/138576167/when-patents-attack


That's really quite depressing reading...


Interesting article and sadly indicative of the status quo in the US.

The "Bread refreshing method" mentioned in that article is ridiculous. That patent would never have been granted in New Zealand.

A couple of things worth noting:

1) The US has completely different legal and governance systems, with completely different influences and goals. A much better comparison would be one with the UK (where most of our laws come from).

2) Software patents are currently allowable in NZ (albeit in a much more restrictive form when compared with the US - the new Patents Act would be even more restrictive with or without the hotly debated 'as such' clause). I am not aware of this sort of thing taking place in NZ. I would be interested to hear if anyone has some local examples of this.

3) If a 'bad' patent is ever granted in NZ (due to poor judgement, human error or whatever the case may be) then under the new Patents Act any New Zealander would have the right to request a re-examination of the patent at any stage during the patent's  lifetime. The person making the request may also provide supporting evidence. If in light of the re-examination it is found that the patent is not valid then it will be revoked.

4) In NZ you can apply for a 'compulsory license' and in the case where the patent holder is not actually using/producing the invention I would imagine the Commissioner/Judge would be extremely sympathetic.

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  Reply # 685817 13-Sep-2012 22:26 Send private message

Does the Intellectual Property Office have the knowledge and resources to determine the non-obviousness of a software algorithm? I believe the US system has a non-obviousness test as well, yet still attracts a lot of criticism.

Is the change aimed at entire computer programs (e.g. a program that implements a particular way to control a washing machine), or would it also apply to individual algorithms (e.g. a way for a computer program to send a signal to a washing machine to start spinning)?

---JvdL---

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Geek
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  Reply # 685833 14-Sep-2012 00:41

Jarno: Does the Intellectual Property Office have the knowledge and resources to determine the non-obviousness of a software algorithm? I believe the US system has a non-obviousness test as well, yet still attracts a lot of criticism.

Is the change aimed at entire computer programs (e.g. a program that implements a particular way to control a washing machine), or would it also apply to individual algorithms (e.g. a way for a computer program to send a signal to a washing machine to start spinning)?

---JvdL---


Ideas, schemes, plans, mathematical equations, data and algorithms are not patentable in NZ nor would they be under the new act. As a rule of thumb if it could be done in someones head (compexity is irrelavant) then it is not patentable.

It is difficult to answer your first question without a context. If you asking whether an examiner can look at a claim for a complex piece of technology (telecommunications patents are particularly nasty) and say off the cuff whether it would be obvious to an expert in that field, then the answer is no. It is simply not possible to become expert in every field. An examiner can however read a patent specification (or other technically complex document) in its entirity , come to understand the invention (i.e. what is the so called 'problem' and how is it being solved), review the state of the surrounding technology and make a judgement call as to whether there is an inventive step in moving from what is known to what is claimed to be new. Can we apply this to computer programs? Yes. Software is by no means the most complex technical field we work with.

When you say "the change" I am not sure what you are refering to. If you are refering to the inclusion of the qualifying statement "only to the extent that a patent or an application relates to a computer program as such" I can only guess that it was done to provide a clearer line in the sand and harmonize with UK & EP law. The previous wording alone "A computer program is not an invention for the purposes of this Act" is a floating piece of law which has not been tested anywhere else in the world. The same goes for Claire Curran's proposed amendment "does not prevent an invention that makes use of an embedded computer program from being patentable". If either of these wordings are used there will have to be a number of court cases to determine the meaning of "computer program" or "embeded computer program", whereas by using the phrase "only to the extent that a patent or an application relates to a computer program as such" which is somewhat settled law in the UK and Europe we pull in a whole lot of court cases which can be used to guide the definition of "computer program".

Lets have a look at your washing machine example. Controlling a washing machine with a computer program is not new. Similarly, a computer program which produces a signal to start a spin cycle is not a new. Even if the algorithm was new both of these cases would not be patentable insofar as the only novelty lies in the algorithm. If however the algorithm resulted in the agitator operating twice as efficiently and using half the power than previous methods then this would be patentable. You could not claim the algorithm alone (as this would merely be a set of instructions) but you could claim "a computer implemented method" which results in the improved operation of the agitator. There has to be some tangible, real world effect.

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  Reply # 685838 14-Sep-2012 01:20 Send private message

 

Lets have a look at your washing machine example. Controlling a washing machine with a computer program is not new. Similarly, a computer program which produces a signal to start a spin cycle is not a new. Even if the algorithm was new both of these cases would not be patentable insofar as the only novelty lies in the algorithm. If however the algorithm resulted in the agitator operating twice as efficiently and using half the power than previous methods then this would be patentable. You could not claim the algorithm alone (as this would merely be a set of instructions) but you could claim "a computer implemented method" which results in the improved operation of the agitator. There has to be some tangible, real world effect.


I'm struggling with this. I'm not saying your wrong, I just want to understand and you seem to have a good handle on it.

So agitators are not new.
Using software to control the agitator is not new.

But using the software to control the agitator in a more efficient way is patentable, even though the change may only be a more efficient algorithm?

Say I am a washing machine competitor and I rewrite my algorithm to control the agitator in my washing machines in a new way that saves power. How or at what point/do I infringe on your patent?

Also if you have any other examples to provide more clarity it would be greatly appreciated.

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  Reply # 685884 14-Sep-2012 08:53 Send private message

Wow, great to hear from someone in the know, who's obviously familar with all of the this and given it some good thought. A couple of questions if I may:

MrMistofeles:

Copyright is typically used to enforce protection of works of literary or artistic nature. To show copyright infringement you must show causal connection (i.e. that someone started with your thing in mind and copied it to arrive at their thing) - this is an extremely high bar and woefully inadequate protection for anything more complicated than a potato peeler.



Why then aren't Authors and Artists up in arms about the woefully inadequate protection of their works?


Surely by allowing this, even in a limited sense that you believe will avoid most "bad" patents, a few might slip through the cracks?  And all a patent troll needs is a couple of bad, obfuscated patents and an army of lawyers, enough to scare the small guy into paying license fees to avoid litigation?



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Geek
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  Reply # 685933 14-Sep-2012 11:25

blair003:

I'm struggling with this. I'm not saying your wrong, I just want to understand and you seem to have a good handle on it.

So agitators are not new.
Using software to control the agitator is not new.

But using the software to control the agitator in a more efficient way is patentable, even though the change may only be a more efficient algorithm?

Say I am a washing machine competitor and I rewrite my algorithm to control the agitator in my washing machines in a new way that saves power. How or at what point/do I infringe on your patent?

Also if you have any other examples to provide more clarity it would be greatly appreciated.


I perhaps oversimplified the washing machine example to try an illustrate the importance of a 'technical effect'.

In reality there would have to be a problem, some barrier which previously prevented the agitator from realizing this +50% efficiency. By implementing the claimed invention you would be overcoming this barrier.

As a washing machine competitor you are free to improve your agitators efficiency in another way. You are also free to overcome this particular 'problem' in other ways to realize a similar efficiency gain. You would only be infringing the patent if you solve the 'problem' in a way which falls within the scope of the claimed solution.

I will try to think of some more examples.

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Geek
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  Reply # 685959 14-Sep-2012 12:21

FYI: The most recent decisions which guide us on the allowability of computer programs come from Australia:

Love him or hate him the Patent Attorney Matt Adams of AJ Park provides a good summary of the Invention Pathways case - here

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  Reply # 686038 14-Sep-2012 14:44 Send private message

MrMistofeles:
blair003:

I'm struggling with this. I'm not saying your wrong, I just want to understand and you seem to have a good handle on it.

So agitators are not new.
Using software to control the agitator is not new.

But using the software to control the agitator in a more efficient way is patentable, even though the change may only be a more efficient algorithm?

Say I am a washing machine competitor and I rewrite my algorithm to control the agitator in my washing machines in a new way that saves power. How or at what point/do I infringe on your patent?

Also if you have any other examples to provide more clarity it would be greatly appreciated.


I perhaps oversimplified the washing machine example to try an illustrate the importance of a 'technical effect'.

In reality there would have to be a problem, some barrier which previously prevented the agitator from realizing this +50% efficiency. By implementing the claimed invention you would be overcoming this barrier.

As a washing machine competitor you are free to improve your agitators efficiency in another way. You are also free to overcome this particular 'problem' in other ways to realize a similar efficiency gain. You would only be infringing the patent if you solve the 'problem' in a way which falls within the scope of the claimed solution.

eg: Changing the size, shape, or location of the agitator (compared to other manufacturers models), with the resulting change having the desired 50% beneficial effect?

Soo for my competing product I would have to make a physical change and an algometric (software) one in order to compete?  

Presumably I could then patent this combination?
Or, seeing as this simply confirmed the 50% efficiency gain of other designs is it not viewed as a 'new' idea, and therefore un-patentable?

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  Reply # 686096 14-Sep-2012 17:00 Send private message

oxnsox: Soo for my competing product I would have to make a physical change and an algometric (software) one in order to compete?


I'll extend that question and ask if making a physical change OR an algorithmic one is sufficient?

---JvdL---


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