A Follow-up to Same-Same- But Different: Australian and New Zealand Patent Laws
29 November 2012
One of the risks inherent in meeting a deadline is that if the world changes the following day, you can end up with egg on your face. In respect of my August 2012 article in Asia IP, this is literally what happened.
In discussing the upcoming changes to New Zealand patent law, I mentioned that the Patents Bill 2008 was “presently languishing at around number 50 on the Parliamentary Agenda” and that “nobody was in too much of a hurry to see the Bill passed any time soon”. Fast forward about ten days – and the bill, having sat dormant for the best part of three years, had its second Parliamentary Reading. What changed in the interim?
In a nutshell, patent law reform was “consumed” by the New Zealand government’s Building Innovation Report, which was released shortly after going to press with my previous article. In this Report, all the appropriate buzzwords and key phrases seem to have been captured: “incentivising innovation”, “the Government is committed” and so forth. Moreover, one mission statement recognized the requirement to: “complete the passage of the Patents Bill to more closely align New Zealand’s patent settings with its trading partners."
Almost overnight, the bill went from #50 to #7 on the Parliamentary agenda. Finally, it seemed that the government was putting its money where its mouth was. However, bringing the bill forward exposed the fact that nobody was really certain what provisions the new legislation should contain – at least insofar as they pertained to the issue of software patents.
As mentioned in my previous article, the most recent iteration of the bill proposed a blanket exclusion on software patents. However, many considered this inconsistent with New Zealand’s obligations under TRIPS – and untenable given that in the background, a free trade agreement was being negotiated with the United States. In the days preceding the second Reading, three Supplementary NEW ZEALAND Order Papers were tabled in relation to the patentability of computer software. When distilled out, the government now appears to have three options:
1. Retain the blanket exclusion, damn the torpedoes;
2. Adopt the “as such” wording of the European Patent Convention; or
3. Attempt to distinguish between software, per se (unpatentable) and embedded software (patentable).
Of course, each of these options has “issues” beyond the scope of this brief update.
Whereas the government has stated that passage of the Patents Bill is a genuine priority, one cannot help but feel that the controversy over the form of any software exclusion may stymie this intention. The bill will now be debated by a Select Committee of the whole House – and it will be interesting to see how (and when) the software patent issue is reconciled.
The software patent saga may not be over yet, but the recent developments certainly suggest that New Zealand is much closer to a new patents regime than we may have thought previously.
