Re: [Nz-public-discuss] [NZOSS-Openchat] the June 2010 swpat Official Information Act release

[Ciarán O'Riordan]

Below are some quick thoughts on how to refute NZICT's ten points.  (To
read their ten points, see pages 12-17 of the OIA document)

The "NZICT" document is clearly written by professionals.  If it was
about a topic I wasn't specialised it, I'd probably find it plausible,
but it's actually just hand waving.  Their points are weak.  Refuting it
is easy, and the MED listened to NZOSS before.  Winning or losing the
software patents battle in NZ might just a question of whether some
people will put the time in to write a good rebuttal, take it to the
MED, and defend it until the legislation is passed.

(I've provided links to some wiki pages - some are very complete, others
 aren't, but they might at least provide a starting point to find other
 useful pages on the wiki, or other docs in the internet.  If you can
 expand those wiki pages, please do.)

1. The wording does achieve the MED's goal.  File formats and interfaces
   will be free from patent restrictions, while washing machines and car
   braking systems will continue to be patentable.  The latter may use
   software, but the innovation is in the physical activities of washing
   and braking, which are unchanged by the proposed Bill.

   The existence of software patents in Europe is unclear.  The patent
   office does grant them, but they're almost never brought to court.
   The case law is just a small number of software patents upheld, and a
   few others rejected.  The uncertainty benefits European developers
   because patent holders are generally too afraid to attack developers
   because they know they might lose their patent.  To be like Europe
   (e.g. have safe developers) you should ban software patents.

   http://people.ffii.org/~jmaebe/swpat/cii.html
   http://en.swpat.org/wiki/Anti-lock_braking_example

2. Software patents *are* uncertainty.  Software is developed quickly,
   and it is developed by individuals and SMEs.  Patent searches are too
   slow and too expensive, and court cases are always partly random.
   Abolishing software patents is abolishing uncertainty.

   http://en.swpat.org/wiki/Software_patents_produce_legal_uncertainty
   http://en.swpat.org/wiki/The_notice_problem

3. Software patents block innovation.  Users expect new software to be
   compatible with their photos, videos, and documents.  If software
   developers are blocked from writing compatible software, then they
   cannot write useful software.  No software development means no
   innovation.

   http://en.swpat.org/wiki/Studies_on_economics_and_innovation
   http://en.swpat.org/wiki/Reducing_innovation_and_research

4. Banning software patents in NZ does not block NZ developers from
   applying for patents in other countries.

5. Clause 15(3A) sends a message that software development is valued,
   that competition is more important than helping monopolies, and that
   local companies shouldn't be blocked by foreign companies with
   intimidating patent portfolios.

6. TRIPS says that software is a literary work.  There's absolutely no
   problem in ditching software patents.  Courts never even mention
   TRIPS when they rule on software patents.

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

7. There is a mountain of evidence.
   
   http://en.swpat.org/wiki/Studies_on_economics_and_innovation

8. FOSS, and all software development is greatly harmed (with the
   exception of a few very rich companies with big patent portfolios and
   a team of lawyers.)

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

9. Patents *on software* have been repeatedly shown to reduce innovation

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

10. Quality isn't the issue.  The MPEG video format is supposedly
    covered by 346 patents in the USA alone.  If quality standards were
    changed tomorrow and half of those patents were invalidated, the
    standard would still be covered by 173 patents.  Nothing would
    change.  No one can use the standard without permission, and they've
    never given permission to a foss project.

   http://en.swpat.org/wiki/MPEG_LA
   http://en.swpat.org/wiki/Harm_to_standards_and_compatibility
   http://en.swpat.org/wiki/Raising_examination_standards_wouldn%27t_fix_much


I'll have more time to help in September.

-- 
Ciarán O'Riordan
+32 (0) 485 118 029
http://ciaran.compsoc.com/

http://EndSoftwarePatents.org/ - http://en.swpat.org/