08 June 2010

NZ Committee Recommends Ban on Software Patents

[Link to update on this topic.]

New Zealand has been in the process, for quite some time now, of drafting brand new patent legislation to replace its tired old Act of 1953.

A proposed Patents Bill was introduced into the NZ Parliament on 9 July 2008, and reinstated in the next Parliament on 9 December 2008.  On 5 May 2009 it was referred to the New Zealand Commerce Committee, which received comments up until 2 July 2009.  The Committee reports having received and considered 67 submission from interested groups and individuals, and having heard 36 submissions.

You can read the Committee's report (including a marked-up copy of the Patents Bill) here.

RECOMMENDATION ON PATENTABILITY OF COMPUTER PROGRAMS

The Committee has made numerous recommendations, many innocuous enough.  However, Patentology is concerned, as a practitioner in the space of electronics, communications and software, about the proposed introduction of an express exclusion for computer software, in the form: "A computer program is not a patentable invention."  [Clause 15(3A)].

Now, Patentology is not a software patent zealot.  We are prepared to accept that computer software can be used to implement a wide range of new features, spanning mass-market consumer applications such as web browsers, office productivity software and operating systems, all the way through to embedded controllers for automobiles, aircraft and industrial processes. 

It is the absolute right of every country, as a matter of economic policy, to determine in which fields patents provide important incentives and protection to encourage investment in innovation and, conversely, in which fields patents might stifle innovation and thus should not be granted.  However, it is the experience of every jurisdiction in which attempts have been made to place limitations on software patents that a "blunt stick" approach just does not work.

The Committee's reasoning is set out on pages 5 and 6 of the report.  It appears to have accepted submissions from the "open source community" that software is inherently non-inventive, that software patents can be obtained for trivial advances, and that they generally stifle innovation.

The Committee accepted that there are types of software, which they categorise under the umbrella of "embedded software", that may be integral to patentable inventions (such as cars, phones, pacemakers and washing machines), and considered whether it might be feasible to exclude software except for embedded software.  However, they were unable to discover a suitable test for distinguishing between embedded software and everything else. They claim to have "received advice" that a general exclusion for computer programs would not prevent the patenting of inventions involving embedded software.

While it is not clear where the Committee's "advice" has come from, Patentology suspects that it was based upon the European experience, where an exclusion in respect of "computer programs per se" has not prevented the patenting of computer-implemented inventions.  However, it has taken literally decades for the case law of the European Patent Office to reach its present state (as demonstrated by the recent EPO Enlarged Appeal Board decision in G 0003/08 Programs for computers/PRESIDENT’S REFERENCE).  There are still points of disagreement between the EPO approach and that of some national Courts.

More importantly, the current European position is based largely upon the "proper" construction of the modifier "as such", in combination with the requirement for "technicality" of inventions, and a particular approach taken in this regard to the assessment of inventive step.  None of the these features are reproduced in the NZ Patents Bill, and therefore it seems unlikely that NZ will be able successfully to import European jurisprudence.

There could be a long road ahead regarding the patentability of computer implemented inventions in New Zealand, if the Parliament accepts the Committee's recommendations.  Except that many inventors are unlikely to consider the NZ market large enough to be worth the effort and expense.

OTHER RECOMMENDATIONS OF NOTE

Readers may be interested in the following examples of the types of inventions that are to be excluded from patentability under Clause 14 on the basis that they are contrary to "public order" or "morality" that the Committee has recommended by included in the Bill:
  1. a process for cloning human beings;
  2. a process for modifying the germ line genetic identity of human beings;
  3. an invention that involves the use of human embryos for industrial or commercial purposes;
  4. an invention that involves a process for modifying the genetic identity of animals that is likely to cause them suffering without any substantial medical benefit to human beings or animals, or an invention that is an animal resulting from such a process.

NEXT STEPS
The Bill will now go back to the NZ Parliament, where the amendments will be debated and voted on by the House of Representatives.  If the Bill receives its Second Reading it will go on to be considered by a Committee of the whole House prior to its Third and Final Reading, after which it will be enacted into law.

Patentology will keep watching for further developments.



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