Giving the government more credit. Twice in once day. Phew.
Now don’t let your eyes glaze over just because I’m talking about patents! I’m giving the government credit so listen up.
The Patents Bill, which is about to come back before the House for its second reading was originally crafted in 1953 it was long overdue for a redraft.
One of the most interesting changes to the Bill is a proposal to exclude computer software from being patentable, on the basis of it being, like books or movies or music, based on a concept and receiving protection under copyright.
The Commerce Select Committee recommendation came after receiving many submissions on the issue. The Committee heard many arguments about the rights and wrongs of patenting software. One of the major arguments was that patenting computer software will stifle innovation in New Zealand.
At present software can be patented so long as it produces a “commercially useful step”.
But the committee, chaired by Hon Lianne Dalziel, said that it accepted that software invariably built on existing software and that software patents were often granted for “trivial or existing techniques.”
Imagine if a piece of music was patented and you could therefore not use the notes in that piece of music.
Despite subsequent criticism of the committee’s recommendation by organisations representing large software patenters, Commerce Minister Simon Power has said the government will back the committee’s changes on this issue.
Power says the issue is not simple or straightforward. “However, the Government believes the committee has dealt with the issue in a sensible manner and has found a reasonable solution.”
The Government would support a select committee recommendation that the Intellectual Property Office develop guidelines for inventions that involve “embedded software” — software that is built into a physical device. Software will still be protected by copyright, which prevents outright copying.
That’s sensible and even a bit visionary and I think it’s the right decision.
Hope you managed to read this far.
Duly noted, Spud!
goes both ways. National didn’t pick their position merely as polar opposite to Labour. Shows that patenting software is a bad idea to just about every part of the political spectrum.
Nice work again Clare. New Zealand must have the access and ability to use intellectual property in a fair and reasonable manner or our efforts to build advanced industries and advances services to enrichen the country will be stifled at the get go.
And the NZ Computer Society have recently come out and backed this.
OFF TOPIC Sorry.
Just wanted to let the Labour MP’s a few things about those NZ passengers stuck in transit due to the eruptions.
1. Air nz are doing there job, but not what the media here is telling us. The passengers have been told that they re reviewing the arrangements and basically get ready to be on your own (different to what the herald has said). There are elderely and families stuck in transit.
2. Air NZ wants the passengers to return to NZ, this will complete there obligations and in many cases will null en void the insurance. Air NZ new before they put the passengers on some of these flights that they would not be able to get them to there destinations, why did they begin the travel?
3. Where is the major share holder of Air NZ and our foreign affairs in all this, are they happy for large numbers of Kiwis to be stuck between a rock and a hard place??
This is a dificult situation, but if Air NZ want to make the passengers stuck in transit return to the departure destination, they should be prepared to continue the flight again at a later date at no cost irrelevant of the ticket conditions.
Good work on teh NZ media for not doing its job properly again.
Hi Clare,
It really is outstanding that all parties appear to have considered and understood the issues sufficiently, to the extent of recommending removal of the patentability of software.
NZCS (the independent professional body for the ICT sector) has written to Simon Power supporting this and also conducted a short albeit unscientific poll of members (representing ICT Professionals across the country).
A whopping 81% of respondents with a view were in favour of the decision to remove software patents (full results, including interesting comments from respondents, at http://tinyurl.com/yym3zku).
It’s fair to say there are very good reasons for and against patentability of software, however on balance we wholeheartedly support this decision.
Paul Matthews
Chief Executive
NZ Computer Society (NZCS)
There is still some argument on the issue – there are those who want software patents (mostly those representing bigger international interests).
So we’ve got papers and counter papers on the subject.
Great job though. When I find myself thinking that National are nuts (mining, an acceptable number on whaling etc.) they do seem to be doing a couple of things which are just plain right…
Still – staying cautious of National.
Interesting and a good move but, how does this relate to our international agreements with countries that do support patenting software such as the US?
I will make a wild guess (I will state up front that I am not an IP lawyer) and say that if we do not allow software patenting of US software in NZ, they will not allow patenting of NZ software products over there.
Since they generate way more innovations in software than we do, that works very positively for the development of our industry.
I wonder what the WTO will have to say about this. They are particularly keen on protecting the IP rights of big corporates.
I’m all for this. Software patents cause more harm than good. The same can be said for most forms of intellectual property, but it’s far easier to show acute harm in this case, given the prevalence of submarine patents.
I know I’d hate to be a software developer in this environment. It’s very near impossible to roll out anything without the risk of being sued.
Good work on this one.
@ Loota
The problem, I believe, is that we have agreements that we support other countries patents. This means that a patent given in the US, for example, is valid in NZ. With this change does that remain true for software patents or is it that software patents given elsewhere no longer apply in NZ?
Depending upon the answer this could have serious consequences for our ability to trade.
Clare said…
One of the major arguments was that patenting computer software will stifle innovation in New Zealand.
But the committee, chaired by Hon Lianne Dalziel, said that it accepted that software invariably built on existing software and that software patents were often granted for “trivial or existing techniques.
It stifles innovation, only when others try to use “generic, trivial or existing techniques” to file patents, not when one is developing something completely new (ie, some algorithms). The algorithms should be protected, because it is original inventions, however the same protections should not be extended to “generic, trivial or existing techniques” as you have correctly stated above.
I don’t know what sort of software patents that are being filed here in NZ but I wouldn’t be surprised if there is nothing there that is found to be original.
Here is one of the most ridiculous software patents (one of many) in the US that I’ve ever seen and here it s brief description:
==========================================
Brief Description :
An automated employee selection system can use a variety of techniques to provide information for assisting in selection of employees. For example, pre-hire and post-hire information can be collected electronically and used to build an artificial-intelligence based model. The model can then be used to predict a desired job performance criterion (e.g., tenure, number of accidents, sales level, or the like) for new applicants. A wide variety of features can be supported, such as electronic reporting. Pre-hire information identified as ineffective can be removed from a collected pre-hire information. For example, ineffective questions can be identified and removed from a job application. New items can be added and their effectiveness tested. As a result, a system can exhibit adaptive learning and maintain or increase effectiveness even under changing conditions.
Electronic employee selection systems and methods
===================================
First of all, there was no invention here. They invented nothing. If one read thru the patent claim, it forbids anyone from using existing artificial intelligence methods as Artificial Neural Network (ANN) and Fuzzy-logic Inference System (FIS) for example. These techniques are pre-existing techniques. ANN was first developed near the end of World War 2 (1943/1944) which has evolved into different more accurate variants today and FIS was first developed in the late 1960s and again it too has evolved dramatically since then.
Any company that wants to develop a better automated pre-employment selection tool, can’t do so, since someone has just patented (not the algorithm) but the generic method of using a computer to automate this task. That is exactly the sort of patents that should be thrown out, because they never invented anything. It is also ridiculous, because it is anticipated that we (humans) will use computers at some stage to automate certain tasks that have been normally done manually in the past. Such patent should have been only granted if and only if, the claimants showed that they have invented an algorithm that is superior to any existing algorithms currently used in any software application for automated pre-employment selection. Now that is innovation, because every competing company will try to outsmart each other by trying to develop the next best algorithm (i.e., one that has the smallest error of classification – false positive). This is where patents should be allowed, the algorithm inventions (originality) and not the generic method.
How do I make a contribution on this issue Clare? Should I approach the IPONZ ?
@ Falafulu Fisi yes I’d approach IPONZ and the NZ Computer Society. And if you want to contact my office to get a copy of the submissions to the select ctte you are welcome.
My recent media release on this issue is here
And I think one fo the major step forwards by the select cttee was to understand and recognise that you can’t patent an algorithm. It would be like trying to patent the notes in a music composition or the words in a book.
Thanks for the detailed example Falafulu Fisi. A type of patent application designed to cast as wide a net as possible – and the type which you rightly say needs to be struck down because it attempts to stifle innovation while adding nothing new to our knowledge base of technology. If it went ahead in theory, anybody could patent a “before” and “after” computer matching scenario and lock everyone else out of developing applications in that area e.g. what someone bought at a shop before versus what they did after, what someone ate at a restaurant before versus what they did after, what someone did for a holiday before, what they did after. And so on.
Daft.
Clare said…
And I think one fo the major step forwards by the select cttee was to understand and recognise that you can’t patent an algorithm.
No, this is where we disagree. If the algorithm is an existing one, then you can’t patent. If it is a new one or an improved variant of an existing one, then it should be protected via patent.
Here is my reason. When one invents something new, i.e., original (I am not talking about generic ones here because that’s not invention at all), there was a substantial amount of money that was poured into the development that lead to that invention. That invention didn’t come to fruition via psychic dreams or suddenly it just dropped from the sky, but it came into existence via genuine effort by the inventor him/herself or the employers to get ahead in innovations & market competitiveness. Such efforts must be rewarded by granting those a protection via patents.
I am afraid that your committee may be hijacked by the likes of NZCS & Paul Mathews, who have confused generics with real innovations via original inventions/discoveries. These 2 are different. One needs protection (such as new algorithm or an improved variant of an existing one), while the other one (generic/trivial) doesn’t.
I would like to hear Paul Mathews view on this (i.e., protection/patent of an algorithm)? Can NZCS & Paul Mathews point out to me here the sort of stifling of innovations where someone in the past tried to patent an algorithm? I am willing to take a bet with him here that Paul would find none, however I am pretty much sure that he will bring up an example from someone trying to patent a trivial/generic method as if it is somehow equivalent to new invention. This is the reason that you must not rely on NZCS alone, but must call experts from our academics institutions, who themselves are spearheading innovations via continual inventions.
Innovations come from originality and if it is not protected, then no one bothers anymore to spend money in inventing new things. Microsoft, Google and Yahoo and the likes know that their R&Ds & new inventions must be protected via patents. If they aren’t, then they wouldn’t be bothered to spend billions on R&Ds at all.
One such academic that your committee should invite is Prof. Nik Kasabov of KEDRI at AUT. Nik knows the value of original inventions because that’s what he is good at. He is also a member of NZCS, so either he should be invited directly by your committee or otherwise, Paul Mathews can request Nik as a fellow member of their society to appear on their behalf.
A guest post at Not PC blog by an US patent attorney (Dale Halling) has a take on IPs:
Ayn Rand on Intellectual Property
Falafulu Fisi posts information about US Patent 7,080,057. The comment is made that “[a]ny company that wants to develop a better automated pre-employment selection tool, can’t do so, since someone has just patented (not the algorithm) but the generic method of using a computer to automate this task”. I’m not sure this is right, and I’m not sure that it is a good example of a trivial patent and one that is going to stifle innovation.
I had a closer look at it on the website http://www.uspto.org. It was filed 2 August 2001. It issued as a granted patent on 18 July 2006. During that time the United States Patent & Trademark Office (USPTO) considered 274 documents all published before the patent application was filed. You can look at the list of prior art here (http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PTXT&s1=7,080,057.PN.&OS=PN/7,080,057&RS=PN/7,080,057). The applicant made limiting amendments to the protection sought until the USPTO was satisfied that the invention claimed was novel and non-obvious over each of the 274 documents. If an examiner considered 274 documents this suggests it is not a trivial patent.
The actual scope of protection is set out at the back of the physical document in the claims. I have set out claim 1 below as one example. If you are developing, using, selling or distributing a system in the United States that includes each and every feature set out in claim 1, then you will infringe claim 1. If you leave off one or more features there is a good chance you won’t. This is a little bit of a simplification but you get the general idea.
As you can see, there is quite a difference between what is mentioned in the abstract (referred to by Falafulu Fisi) and the claims (especially claim 1 set out below). The claim does not preclude the use of artificial intelligence as mentioned by Falafulu Fisi. It is a common mistake to look at the abstract and think it defines the invention. It doesn’t. Much the same way as a women’s magazine cover isn’t always (often) a good indication of the contents.
If you are concerned about it you can request re-examination. You need to find a single document that describes each of the features of claim 1. The USPTO has of course already considered 274 documents. They are happy to consider more on request.
The patent is assigned to Unicru, Inc. Does anybody know if they are active in enforcing this patent? Has there been any litigation over this patent? Has Unicru Inc attempted to licence the patent to others under onerous conditions? These are all important issues (in addition to claim scope) to be investigated before we assume that this patent is stifling innovation.
Here’s a copy of claim 1 of the patent.
1. An apparatus for assisting in determining suitability of an individual for employment by an employer, the apparatus comprising: an electronic data interrogator operable to present a first set of a plurality of questions to the individual; an electronic answer capturer operable to electronically store answers by the individual to at least a selected plurality of the first set of questions presented to the individual; an electronic predictor responsive to the stored answers and operable to predict at least one post-hire outcome for at least one job performance criterion if the individual were to be employed by the employer, the predictor providing a prediction of the at least one post-hire outcome for the at least one job performance criterion based upon correlations of the stored answers with answers to sets of questions by other individuals for which post-hire information has been collected; and an electronic results provider providing an output indicative of the at least one post-hire outcome for the at least one job performance criterion to assist in determining suitability of the individual for employment by the employer; wherein the first set of the plurality of questions to the individual has been subjected to performance-driven item rotation comprising at least one validation cycle during which at least one of the questions has been retained, at least one former question has been dropped, and at least one experimental question has been inserted.