State of Innovation

Patents and Innovation Economics

New Zealand to Outlaw Patent on Software

According to Kiwi Blog “A good move from the Gov’t on patents” there is a new Patent Bill that will prohibit patents on software.  Logically, this suggests that there is something special about software that is incompatible with patents.  In order to determine, we first have to have a clear understanding of what software is and what a patent is.  A patent is a property right that a person earns by creating a new invention.  But what is an invention?  An invention is anything created by man that has an objective result.  This definition clearly delineates that inventions are not things in nature or occurring naturally.  An invention, also, is not everything created by man.  For instance, a painting or a song is a creation of man, but they do not have an objective result.  Songs and paintings fall into the category of aesthetic creations.  Their goal is to elicit a subjective response and people will react differently.  An invention has an objective result.  For instance, a controllable heavier than air powered craft, such as the Wright brothers invented has the objective result of controllable powered flight.  Software is a set of written instructions that are converted by a compiler (interpreter) into a wiring scheme that opens and closes transistors.  Software that is not converted into instructions is just a bunch of bad writing.

Now that we have a clear definition of a patent and software, we can examine whether there is something special about software that would cause it to not be patentable.  The written instructions of software do not have an objective result, unless they converting into a wiring scheme.  Therefore, software code is not patentable.  No country has patent laws that apply to software code.  The way this is normally stated is that software per se is not patentable.

If this was all the New Zealand bill was proposing, we could stop here.  But all indications are that the proposed law would not allow patents for inventions in which software was used to wire an electronic circuit.  As any electrical engineer knows and software developer should know, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits.  The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing.  Therefore, a time critical solution is more likely to be implemented in hardware.  While a solution that requires the ability to add features easily will be implemented in software.  Software is just a method of converting a general purpose electronic circuit (computer) into an application specific electronic circuit.  If software is not patentable it leads to absurd results.  For instance, if I design a pacemaker using logic circuits, it is patentable.  However, if I use a microcontroller to do the exact same thing, it is not patentable.

Software per se is not patentable.  Executed software is just a way of wiring an electronic circuit.  Electronic circuits have objective results, are a creation of man and therefore an invention.  There is no logical reason to distinguish between software-implemented inventions and other inventions.  This bill is based on emotion or an anti-property rights agenda or both.

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May 13, 2013 - Posted by | -Philosophy, News, Patents | ,

5 Comments »

  1. Dale,

    I agree with your ultimate conclusion that software-based inventions need to remain as patentable subject matter.

    However, I respectfully depart from your conclusion that the word “software” has a clear definition and that you are the final authority on what that definition is.

    We human beings use many words (make many noises) that have no agreed upon definition. “Software” is one example. “Computer” is another. Further examples are “truth”, “justice”, “god”, “reality”, “abstractness”, and “INNOVATION”.

    (BTW, did you note that the Supremes in Monsanto have started using that “innovation” word? Inventions are no longer inventions. They instead must be “innovations”. Welcome to a brave new, twisty-worded world.)

    And one pill makes you 10 feet tall –Go Ask Alice:
    http://patentu.blogspot.com/2013/05/and-one-pill-makes-you-10-feet-small-go.html

    Comment by step back | May 14, 2013 | Reply

  2. Words have definitions, which is exactly the point of Alice in Wonderland.. If you do not like my definition, you can certainly propose your own. But no rational discussion can be had without clear definitions, which is why politicians, liars,lawyers and bad patent examiners don’t like clear definitions.

    Comment by dbhalling | May 14, 2013 | Reply

  3. Step back,

    Try to go to the moon and back with loose definitions of what you mean by gravity, or a meter, or a second or oxygen of thrust and see how that works. Or build a nuclear power plant with vague definitions of force, mass, radiation, energy, etc. It always the people who want to destroy something that hide behind vague definitions – for instances see Living Constitution. The Living Constitution people finally feel free to show their real colors and they are all saying that the Constitution is BS and we should get rid of if. But they started by trying to suggest that definitions shouldn’t limit us.

    Comment by dbhalling | May 14, 2013 | Reply

  4. IIRC, it was Humpty Dumpty sitting on the wall who said words mean whatever I choose them to mean.
    Soon after he conducted a scientific experiment involving the law of entropy.
    By all accounts it was successful. Entropy continues to dominate.

    Human intelligence appears to be subject to entropy as well.
    Witness New Zealand, CLS v. Alice en bance and many other decisions by our esteemed law-givers.

    BTW, not fair of you to use precise physics terms in this conversation.
    Judges don’t use physics terms. You forget. These are the people (except for Newman and Moore IIRC) who flunked physics 101 and decided to switch to being law majors instead. They don’t speak physics. They don’t speak science. They speak “gobbledygook” (to quote Scalia J.) 😉

    Comment by step back | May 14, 2013 | Reply

  5. p.s.

    Also on the LOL side of things,
    try pawning these words on the PTO with the claim that “all” words have definitions:

    large
    small
    great
    bad
    good
    ugly
    beautiful
    smart
    intelligent
    thing
    nothing
    space

    and most of the words in the following:

    ’T WAS brillig, and the slithy toves
    Did gyre and gimble in the wabe;
    All mimsy were the borogoves,
    And …
    http://www.bartleby.com/246/846.html 🙂

    Comment by step back | May 14, 2013 | Reply


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