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INSIGHT: Discussing the Pros and Cons of NZ Software Patents is not only meaningless, it’s illogical

INSIGHT: Discussing the Pros and Cons of NZ Software Patents is not only meaningless, it’s illogical

"Let’s just eliminate that meaningless term."

Computerworld New Zealand’s recent article, Is NZ's tech industry under threat? IT pros take Software Patent concerns to Trade Minister, focused on problems with “software patents” and the concern that NZ IP patent law may change.

The phrase ‘software patent’ as used in the article is both illogical and meaningless.

But New Zealand is not alone in misusing the term, it is joined by the US along with the rest of the world.

In my recent article, Lifting the Fog on ‘Software Patents’ - Eliminate that Meaningless Term, I explained why in the US one does not get a patent on software or a computer program.

I wrote…

“Software, just like electronic circuits, or steam, or solar energy, or gears, or rubber bands - to name a few - is only a means to an end.

“Under the USPTO long time guidelines one receives a patent only if a) there is an invention b) if there is a proper Specification (an adequate disclosure to one skilled-in-the-art) and c) the so-called invention in the patent application is not abstract and not obvious.”

The article also explained why there is no difference between true inventions where software descriptions are the entire Specification in a patent application and where software descriptions constitute only part of a Specification.

I made a somewhat similar argument in 2013 when the New Zealand current law was passed in my June 2013, in another Computerworld New Zealand piece, Opinion: Why banning pure software inventions from patent system makes no sense.

I share Ian Taylor’s interest, who is president of NZ’s IITP, in the importance of innovation and the need for a viable Software Industry.

But I do not agree with him that eliminating patents where all of the invention, or part of the invention, is in software would be good for the Software Industry and for all other industries.

Banning such inventions would devastate the patent system. Software has become ubiquitous.

According to the 2013 GAO (US Government Accounting Office) Report, “By 2011, patents related to software made up more than 50 percent of all issued patents.”

“And it is well recognised that these patents are not only from the Software Industry, but from virtually every industry in the world.”

If the New Zealand community wants to debate the issue of “software patents” the debate should be framed around the question; “Should a real invention be denied a patent solely because the specification in the application contains just software and a computer as the preferred implementation?”

The Computerworld New Zealand article also quoted several industry spokesmen who were concerned that weak and obvious patents have been issued in the past opening the door for patent trolls to sue.

Thankfully, in the US, those very questionable and weak patents that were issued in prior years are now being rapidly rejected by the US Courts.

And the USPTO and patent examiners are finally recognising when to issue a patent containing an invention and when to reject applications.

A 2013 study conducted by Graham and Vishnubhakat and described in their article, Of good Smart Phone Wars and Software Patents, have shown that there is no significant difference between “software” and “non-software” patent applications in their rejection rate by USPTO patent examiners.

There are also new tools to help the US patent examiners and IT lawyers in looking for prior art e.g., Google recently announced a new version of Google Patents and Prior Art Finder.

In the US, its 2014 historic Alice vs CLS Bank Supreme Court decision was good for inventions that contain a computer and software in the Specification section of the patent application.

The Supreme Court wrote in its unanimous Alice decision: that “inventive concepts” are the basis for a patent and that “improvements to another technology or technical field” and” improvements to the functioning of the computer itself” were examples of patentable subject matter.

They went on to state that their position is consistent with an earlier 1981 Diamond v Diehr Supreme Court decision.

On page 13 in the Alice brief they wrote “…the claims of Diehr were patent eligible because they improved an existing technological process, not because they were implemented on a computer.”

So let us stop talking and writing about software patents, for it has nothing to do with whether a patent should, or should not, be issued for an invention.

Let’s just eliminate that meaningless term.

By Martin Goetz

Martin has a long history in the software field, as the recipient of the first software patent in 1968.

Martin has written extensively in the United States on software patents and was a founder and President of Applied Data Research (ADR), the first company to market a software product in 1965.

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