TPP Will Override Five Years Of Democratic Discussion About Software Patents In New Zealand

from the desperate-for-a-deal,-any-deal dept

Mon, Aug 3rd 2015 5:53am — Glyn Moody

The latest news is that the supposedly "final" round of TPP negotiations has failed to produce an agreement, although some "technical" discussions seem to be continuing on the side in an attempt to overcome at least some of the remaining differences. Despite the fact that negotiators are claiming that most of TPP is finished, there are no signs that the corresponding text will be released, which means that people have to fall back on leaks to find out what is being negotiated in their name.

Recently, WikiLeaks released an important, if rather outdated, TPP letter concerning state-owned enterprises (SOEs). If that thinking is reflected in the current text, it could have major ramifications for state-owned broadcasters in countries like Australia and New Zealand. Less high-profile than the WikiLeaks document on SOEs, another leak is nonetheless equally dramatic. ZDNet reports that as part of the TPP deal, New Zealand has sacrificed its new law banning software patents:

[President of the New Zealand Open Source Society Dave] Lane said leaks of the negotiating position show that at one point only Mexico was holding the line on software patents and New Zealand appeared to have already conceded.

The implication is New Zealand's new software patent law, passed just two years ago, will need to be reversed if the TPPA is inked.

As Techdirt reported, the issue of whether software should be patentable was fiercely debated in New Zealand for over five years. After engaging in this open, democratic debate, the New Zealand parliament finally passed a new law on software patents in 2013. And now, if the leak is correct, that hard-won law will be simply discarded without the slightest public discussion -- once the TPP text is published, it can't be changed in any way, so there is no option to remove specific measures from it: it's all or nothing.

Lane went on to echo a point Techdirt made about TPP a couple of years ago:

if New Zealand hobbles the domestic software market by adopting US strong IP, strong patent and copyright terms, then we are effectively "killing in the cradle" an industry that is projected to soon surpass dairy.

Strong IP, he said, was used by incumbents to block innovation and competition from would-be competitors and disruptors.

A strong software industry offers a weightless export that allows New Zealand to rise above the commodity fray of dairy, meat production and timber.

In other words, desperate to sign up to the TPP agreement, however bad, the New Zealand government seems willing to sacrifice 21st-century growth for the sake of shoring up 19th-century industries -- and to ride roughshod over democracy along the way. So much for the common but bogus claim that trade agreements like TPP or TAFTA/TTIP will not require laws to be changed.

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Filed Under: democracy, new zealand, patents, software patents, sovereignty, tpp

28 Comments

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That One Guy (profile), 3 Aug 2015 @ 6:53am

DMCA-vu
If you can't get what you want through the legal or democratic route, just use a 'trade' agreement to force through the desired changes/laws, with none of that 'legal challenge' nonsense getting in the way.
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Anonymous Coward, 3 Aug 2015 @ 7:15am

Re: DMCA-vu
Back in 'the day' (Cold War) US would just foment a coup if our 'partners' thought a state-owned enterpr
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lfroen (profile), 3 Aug 2015 @ 7:19am

NZ have no software industry anyway
First, NZ barely have any software industry.

Even if such industry (somehow) develops in future, it really means nothing what is patentable in NZ. What matters is what is patentable in target market (US/Europe/China).

Now, patent in software should be governed by same rules as patent on mechanical contraption. What difference does it make how idea is implemented: by chip, lever or software?
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Anonymous Howard (profile), 3 Aug 2015 @ 7:37am

Re: NZ have no software industry anyway
The difference is while patent judges (maybe) were able to decide if a mechanical invention was new, non-obvious and I don't remember the third, this will go out of the window with software, as most judges are so computer illiterate, they can't use google to search for prior art.

Also, abstract ideas (algorithms) shouldn't be patentable, and individual implementations are differ so much as to be pointless to patent them.

Conclusion: either we'll get shitty overbroad abstract non-intelligible troll patents OR we get so narrow that there will be no point in patenting them.
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orbitalinsertion (profile), 3 Aug 2015 @ 7:51am

I want to know what is in the TPP that some countries would actually want that they would accept all the other junk if they are aren't on board with being ridiculous about "IP" law and enshrining corporations as the ultimate object of worship.
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John Fenderson (profile), 3 Aug 2015 @ 8:21am

Re: NZ have no software industry anyway
There are a few important differences. One is that most software patents are actually patents on algorithms -- something which is supposed to be nonpatentable.

Another is that the software world advances so quickly that the lifespan of a patent ends up accomplishing the opposite of what a patent is supposed to do.

Another is that the patent office is absolutely awful determining what a software patent is actually patenting and whether or not the patent is valid and being infringed.

But, for me, it's a matter of results: software patents have made software development nothing more than a crapshoot with the odds stacked against the developer. You cannot write nontrivial software that is free of infringement, and you cannot determine in advance what might be infringing and what is not. You have to wait for the lawsuit to put you out of business.
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Anonymous Coward, 3 Aug 2015 @ 8:39am

the thing i find more frightening than anything else is how every other government involved in this is basically allowing themselves to become part of the USA, which is then becoming 'MASTER OF THE WORLD'! there wont be a single thing that then wont be governed by a country thousands of miles away, which, in turn, is going to be governed by certain industries, namely entertainment, pharma, software etc. and because anyone who puts up any sort of resistance is immediately 'black balled', threatened with sanctions and God knows what else, all by representatives who are nothing but bullies, backed, not so much by the US government, but by those industries mentioned which have nothing but self preservation and profit in their sights! the people and the failures dont matter because once this deal goes through, no one will be allowed to invent or produce anything unless it is vetted, then highjacked to the USA! what the hell is going on??
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Anonymous Coward, 3 Aug 2015 @ 9:00am

Re: Re: NZ have no software industry anyway
...the software world advances so quickly that the lifespan of a patent ends up accomplishing the opposite of what a patent is supposed to do...

Which brings up a debate that is LONG OVERDUE: why should a patent outlast it's object?
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steell (profile), 3 Aug 2015 @ 9:24am

Re: NZ have no software industry anyway
"ICT (information and communications technologies" is a major business for New Zealand, contributing almost $23 billion to the economy in 2012, up by 17% since 2010. A third of ICT sales were generated by telecommunications services, and $1.6 billion came from exports."

https://www.newzealandnow.govt.nz/work-in-nz/nz-jobs-industries/information-technology-jobs

Considering the size of NZ (population wise), Do you believe that you statement is accurate?
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Anonymous Coward, 3 Aug 2015 @ 9:27am

Re: Re: NZ have no software industry anyway
Another is that the software world advances so quickly that the lifespan of a patent ends up accomplishing the opposite of what a patent is supposed to do.

That is a feature desired by a few big software companies, as it helps them eliminate the competition. When companies become large, it is easier for them to stamp out innovative competitors, rather give their developers the freedom they need to be innovative.
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Anonymous Coward, 3 Aug 2015 @ 9:29am

Re:
It's not so much what is in the pact as what the pact will achieve.
Enterprises, in particular multinational ones, get to play on a pitch of their own making, well-secured from democratic demands of wealth sharing through tax accountability.
Hence the eagerness with which the provisions for putting businesses before sovereign nations is pursued, as this will open for more transferring of public wealth to private hands while the chance for nations to enact policies that threaten to upset this New World Order diminish accordingly.
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Anonymous Coward, 3 Aug 2015 @ 10:25am

Re: Re: NZ have no software industry anyway
Also money. It take little time or money to develop the patented bits that are included in a program. It's not like a pharmaceutical, whose R&D costs are much higher. Patents make more sense where the R&D costs are higher and less sense where R&D costs are lower. Also, I think the success of open source (including innovative areas like "big data" and containers) show patents are not necessary for innovation in this sector.
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Sunhawk, 3 Aug 2015 @ 10:27am

Re: NZ have no software industry anyway
Patents explicitly cannot cover rules and instruction sets... and a computer program is literally nothing but.

The patent system as-is is not perhaps the best place for software intellectual property; myself, I suspect something that's a mixture of patents and copyright would suit it better.

To be honest, I feel like we should remake IP categories to have more nuance (among other reforms) - not just for software patents, but drug patents (as there's a long delay in approval, patent periods for drugs should take that into account a bit better, for example) and other areas of use.
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JoeCool (profile), 3 Aug 2015 @ 10:42am

Re: Re: NZ have no software industry anyway
New, non-obvious, and USEFUL. That third one get ignored a LOT by the patent office... almost as often as the second one.
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Richard (profile), 3 Aug 2015 @ 10:53am

Re: NZ have no software industry anyway
What difference does it make how idea is implemented: by chip, lever or software?

If you don't know the answer to that one you really haven't been paying attention.
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Rekrul, 3 Aug 2015 @ 10:57am

Re: Re: NZ have no software industry anyway
There are a few important differences. One is that most software patents are actually patents on algorithms -- something which is supposed to be nonpatentable.

Where do I go to patent the process of adding two numbers together in a computer program? Pretty much every software company on the planet will have to pay me royalties!
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Richard (profile), 3 Aug 2015 @ 10:59am

Re: NZ have no software industry anyway
What difference does it make how idea is implemented: by chip, lever or software?

The difference is this:

Patents were already a bad idea for mechanical inventions - the history of everything from the steam engine to the aeroplane and beyond demonstrates that amply (just look up the history) BUT software patents take those problems and amplify them a millionfold.
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Anonymous Coward, 3 Aug 2015 @ 11:19am

The idea of software patents make no sense ,
who profits from it,
trolls ,lawyers , big companys like ibm who want to reduce competition,
and attack small companys startups ,
and reduce competition in the market .
software patents are good for rent seekers ,
people who do nothing but want money from startups and
small companys .
AND now the usa wants to export its bad laws to other
countrys ,wtf ?
Also the patent office has shown it will
give out patents on overly broad
concepts
eg a podcast patent
given out years after podcasting was invented .
software patents were rejected in nz
and the eu cos they serve no practical purpose
to progammers
and tech companys .
ttp is a form of legal warfare ,
no need to invade nz or france or the eu,

Lets just force em to to adopt bad usa patents and
extend drug patents to 10 years .
eg eu will be basically forced to adopt the worst of usa laws without
things like the concept of free speech etc
things like the public domain and state health services
will be under attack.
we will become the united states of europe ,
with us companys sueing the eu to reduce food and drug
standards to the low level of us regulation.

Wheres all the eu companys that want software patents
there are none .
this was debated years ago and rejected.
theres no software trolls in the eu,
asking for money from eu startups .
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Anonymous Coward, 3 Aug 2015 @ 11:23am

Re: DMCA-vu
It wouldn't be a problem if these trade agreements were democratically passed but they weren't. They were passed in secrecy with industry interests present. That negates their democratic legitimacy and any claims that they are intent to serve the public interest.
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David, 3 Aug 2015 @ 11:50am

Re: Re: DMCA-vu
Close your blinds before starting postings like that.
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Anonymous Coward, 3 Aug 2015 @ 12:24pm

Re: NZ have no software industry anyway
"What difference does it make how idea is implemented: by chip, lever or software?"

Precisely. Unfortunately, what has happened in countries where Software patents have been allowed, is that putting "on a computer" or "over the Internet" on an obvious or already patented idea was enough to grant a new "software patent". In countries that use these patents, they are considered "more equal than other patents".

If they were indeed treated the same (if you couldn't get a patent just because it was software), I think most people would have no issues with them. Of course, if they were treated this way, software would be extremely expensive to patent, and most software patent attempts would fail the regular tests (which the USPTO no longer appears to apply anyway, assuming good faith and due dilligence on the part of the submitter instead).
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Anonymous Coward, 3 Aug 2015 @ 12:38pm

Re: Re:
To put it another way, the TPP creates a world order where signed nation states are the ones wealthy multinational corporations will be willing to set up shop in. Meaning countries that dont's sign the TPP will be shunned, and won't get any of the juicy trade or capital investment.

So it's more a "If everyone else does this and we don't, our economy is going to fail" sort of a situation. The US is basically holding a gun to the heads of smaller nation states, and at the same time dangling a wilted carrot in the direction they want everyone to go.

To which I say: Look at how the US handles NAFTA, and you'll see why TPP is a really bad idea for everyone but the US (and isn't really that great for the US either, just the corporate-backed policy makers who live there).
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Anonymous Coward, 3 Aug 2015 @ 1:33pm

'traitor', short for 'trade door'
Google it (in the future).
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JoeCool (profile), 3 Aug 2015 @ 2:00pm

Re: Re: Re: NZ have no software industry anyway
Too late, MS already has that patent. ;)
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Kronomex, 3 Aug 2015 @ 3:23pm

It's all the way with the US or else!
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lfroen (profile), 4 Aug 2015 @ 12:35am

Re: Re: NZ have no software industry anyway
>> Patents were already a bad idea for mechanical inventions
That's a whole point I was trying to make. Either it is good for both, or it is bad for both too.
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Seegras (profile), 5 Aug 2015 @ 12:47am

Re: NZ have no software industry anyway
Now, patent in software should be governed by same rules as patent on mechanical contraption.

Software is math. Mathematically provable. Mathematics are not patentable anywhere in the world. And the European Patent Treaty even explicitly rules out "software as such".

Just because some patent-offices blatantly ignore this with their Moby Dick Support Device logic doesn't make them any more legal. https://seegras.discordia.ch/Blog/the-moby-dick-support-device/
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Seegras (profile), 5 Aug 2015 @ 12:50am

Re:
It's about patents in general.

Comprehensive patents are taken out by some parties, for the purpose of stopping inventions, or appropriating the fruits of the inventions of others, &c. Such Consequences, more resembling the smuggling and fraud caused by an ill-advised tax than anything else, cause a strong suspicion. that the principle of the law from which such consequences flow cannot be just.

Already known in 1851.

https://seegras.discordia.ch/Blog/voices-against-the-patent-system-the-economist-1851/
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