Software patents in South Africa

Software patents are a disaster and I'm glad they're specifically excluded in our law. America's patent law on the other hand is basically broken, and probably will stay that way until it becomes a political issue.
 
Tomtomtom said:
Software patents are a disaster and I'm glad they're specifically excluded in our law. America's patent law on the other hand is basically broken, and probably will stay that way until it becomes a political issue.
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This is not exactly true. The Patents Act also excludes discoveries, mathematical formulas and scientific methods from patentability, but this exclusion only related to the thing per se. There is no reason why an invention which is new and inventive making use of a discovery, mathematical formulae, scientific methods or software cannot be patentable. It is rediculous to think that a new and inventive device (for example, a 3d tv) is excluded from patentability because it makes use of software (firmware) or an mathematical algorithm (to display/compute the interleaved 3d pictures).

The key terms here are new and inventive. These requirements are well established in all patent law systems. If an invention meets these requirements it is worthy of patent protection.
 
leonpierresusan said:
The key terms here are new and inventive. These requirements are well established in all patent law systems. If an invention meets these requirements it is worthy of patent protection.
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Okay fair enough, so our patent law is also broken!

The bigger question for me is, why consider software an "invention" at all, and even if we do, why is it worthy of state protection? Are software patents, even new and "inventive" ones, on balance a good thing for society? I strongly suspect not.

I think software in general is often far more an idea trivially translated into code, than it is an invention. Ideas are never new; they just evolve. So almost every software patent is really just prior art, with slight modification.
 
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Tomtomtom said:
Okay fair enough, so our patent law is also broken!

The bigger question for me is, why consider software an "invention" at all, and even if we do, why is it worthy of state protection? Are software patents, even new and "inventive" ones, on balance a good thing for society? I strongly suspect not.

I think software in general is often far more an idea trivially translated into code, than it is an invention. Ideas are never new; they just evolve. So almost every software patent is really just prior art, with slight modification.
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Regarding prior art with a slight modification, this is where the inventiveness requirement comes in. The test for inventiveness is if the step taken from the prior art would have been obvious to a person skilled in the art, then the inventiveness requirement is not satisfied.

I believe that new and inventive software patents are good for society. With patents you make your invention available to the public in exchange for a limited monopoly. When the monopoly ends, the invntion is in the public domain. The idea being that it is better for such inventions to become available to the public, rather than being hidden and used secretly to prevent others from gaining from your invention.

Keep in mind that, particularly with software, it is much simpler to copy an existing product than to develop it from scratch. Knowing that your efforts to develop something new and inventive from scratch can be protected, I think, encourages innovation.
 
leonpierresusan said:
Regarding prior art with a slight modification, this is where the inventiveness requirement comes in. The test for inventiveness is if the step taken from the prior art would have been obvious to a person skilled in the art, then the inventiveness requirement is not satisfied.
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How is this test performed in practice? Do you have any confidence in it?

leonpierresusan said:
I believe that new and inventive software patents are good for society. With patents you make your invention available to the public in exchange for a limited monopoly. When the monopoly ends, the invntion is in the public domain. The idea being that it is better for such inventions to become available to the public, rather than being hidden and used secretly to prevent others from gaining from your invention.
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Sure. And the utility of the public record is of course proportional to the non-obviousness of the invention to the public. But then...

leonpierresusan said:
Keep in mind that, particularly with software, it is much simpler to copy an existing product than to develop it from scratch.
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If it's easy to copy an existing product, and if anyone skilled in the art, looking at the product, can figure out how to copy it, what is the benefit to society of having the patent record in the public domain? This is the core issue for me. We are extending monopoly rights to fairly arbitrary individuals and corporations in exchange for worthless pieces of paper (and I encourage everyone to try reading some software patents -- they are very often quite literally completely worthless to the very people who are supposed to understand them).

leonpierresusan said:
Knowing that your efforts to develop something new and inventive from scratch can be protected, I think, encourages innovation
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I think this is a highly dubious claim, considering how software patents work in practice. As a software developer, I am more concerned about infringing on existing patents by accident than I am encouraged by the possibility of patenting a minor new variation on an idea -- which is what almost all software "innovation" actually is.
 
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In practice the test will be evaluated by a court in light of prior art available at the time of filing the patent application. The test originates from UK end European patent law and has been refined by the courts over the years. Typically, it may be sufficient to show that the step forward taken in the invention can be shown as a combination of two or more prior art disclosures prior to the priority date (filing date) of the patent. In other cases it might be more complex, particularly if the change is small but has a large effect.

I'd rather not comment on access to public record in South Africa. What is worth mentioning though, is that the public record is admissible, regardless of how obscure it is, and will be considered prior art against a patent. What I mean by this is that the disclosure of a published patent restricts the scope of protection for following patents in the same field.

It is 'easy to copy an existing product' in that it is obvious once the solution is in front of you, but obviousness should not be considered in hindsight. That sounds confusing, but google for alternatives to crankshafts in the 1700s. The crank was patented for steam engines late 1700s and a plethora of alternatives were developed to evade the patent. To come up with the crankshaft invention seems simple once it is in front of you, but coming up with such an invention in a vacuum is much more difficult. 120 years later, most engines have a crankshaft. Few of the developed alternatives are around today. If it were that easy to come up with a crankshaft, the alternatives should still have been around today. The knowledge imparted to the public by that invention is well spent on waiting 20 years.
 
"The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying."

--John Carmack

Pretty much sums up the idea of software patents.

Let the real experts decide. Lawyers aren't the experts here (yet they try to pass the laws), software developers and the guys who write the best code out there all say the same thing as John Carmack.

And no, sorry nothing in software is revolutionary to the point that no-one else is going to come up with it. A lawyer couldn't understand that because he isn't a programmer. It is a basic solve for X formula and you are trying to stick a patent on your method of solving X. And then try to confuse the public by comparing it to a piston or a crank. The idea is laughable and shows how little they know about software development. I'd try and explain it but you just wouldn't get it.

Everything based on the Von Neumann architecture (all software and digital hardware today) is evolutionary, not revolutionary. If you come up with another architecture, hell, that is definitely patent worthy.
 
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Agreed, basically prevents me making a better widget than the original widget maker unless I pay him.
 
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