Proposed Patent Bill Excludes Software
10 June 2013
New Zealand’s proposed patent bill will not offer protection to software, despite opposition from software developers. The bill was introduced to Parliament in 2008 and underwent its second review in September 2012.
Commerce minister Craig Foss said consultation with the software and IT sector had led to a clarification of the bill’s scope, although labour information technology and communications spokeswoman Clare Curran called the bill a “humiliating backdown.”
“It caused uproar in our innovative IT industry, which knew it would be stifled by constant threats of lawsuits from multinationals,” Curran told Fairfax NZ News.
“The government has worked with the IT sector to clarify details in the bill to ensure computer programmes are not patented in New Zealand,” Foss said. “This has always been our intent and reflects the recommendation of the Select Committee that computer programmes should not be patented in New Zealand.”
It appears that the argument is due to different interpretations about what qualifies software patent.
“I’m confused by Curran’s comments because I think that software patents will still be granted if the exclusion is enacted like new and inventive software that controls a smartphone, or a washing machine, or a car should still be patentable from my brief reading of the draft provisions and explanatory notes,” Wes Jones, a partner at Baldwins in Auckland, tells Asia IP. “Mere use of software for automation of a known process like incorporating a company will be excluded – but that wasn’t patentable previously regardless. Perhaps the confusion lies in what people consider a software patent to be.”
Jones says that one of the problems in New Zealand with the software patentability debate is the lack of understanding on what is meant by a software patent or even how the patent system works. “During the public debate on the issue Curran was quoted, ‘imagine if a piece of music was patented and you could therefore not use the notes in that piece of music.’ The depth of understanding revealed by that comment is rather embarrassing. It hasn’t helped that those presently in parliament haven’t had the benefit of the consideration of the software patentability debate that occurred over 10 years ago. In the long lead up to the patents bill the then Ministry of Economic Development put out a consultation paper and invited submissions. All parties duly went through the process, and the outcome was that the law didn’t need to be changed.”
Jones notes that the bill was drafted in 2004. “Many of us thought the matter had been handled, so it was a surprise to see that the whole issue was opened up again, and I think that latest debate lacked the objectivity of the earlier approach.”
Susan Chalmers, policy director at InternetNZ , the group which oversees the internet in New Zealand, believes that removing software from New Zealand’s patent regime can help software developers innovate freely.
“Software can be protected by more than one IP regime. There’s a crossover with copyright, so while there are different protections, removing the patent side is going to be important for the software development industry here,” Chalmers said. “Also, it’s not so much the IPR itself, it’s just that it’s too strong. What this does will give developers the ability to go ahead and know that they can innovate without fear of being sued or shut down.”
Copyright is indeed another valuable protection for software, but unlike patent law, copyright law will not stop another party from developing a product that does the same thing.
“A lot of New Zealand software isn’t highly technical – we don’t produce smartphones – so one can sympathize with the approach that we don’t really need software patents, and that such patents are obtained by foreigners who will obstruct local development,” Jones says. “But that is a somewhat defeatist view. The industry has been growing despite the ability for software patents to be granted, and the new act will raise standards for patenting, so undeserving patents will be far more difficult to obtain. There is also the point that for any New Zealand entity to be truly successful, it will need to export as our population is only around 4.5 million. Thus successful companies need to prepare and design for the impact of patents in the countries they export to, such as the US and Europe.”
