Most submissions on the guidelines formulated by the Intellectual Property Office of New Zealand (IPONZ) on patentability of software suggest the guidelines have not achieved the desired clarification of proposed legislation and may have served further to muddy the question of what software is or is not patentable.
Section 15 (3A) of the Patents Bill – currently awaiting its second reading in Parliament – simply states “a computer program is not a patentable invention”. This clause was inserted by the Commerce Select Committee, on the strength of a number of submissions.
Further debate has seen the Ministry of Economic Development suggest that the committee did not intend to exclude “embedded” software – that is, in broad terms, software that controls a machine, achieving a physical effect outside the realm of pure computation.
The IPONZ guidelines attempt to achieve something like that qualification, while studiously avoiding using the term “embedded”. Several submissions, such as those from Fisher & Paykel Appliances and from John Rankin of Affinity and Don Christie of Catalyst IT, recommend putting the term explicitly in the guidelines, if not in the Bill itself, and either setting ICT industry representatives to work towards a definition of the term or taking on board existing definitions.
The F&P submission suggests “there is no great difficulty” in defining what “embedded” means, and points out that there is a definition in Wikipedia.
However, this, like many Wikipedia articles, is disputed; Wikipedia editors have appended notes reading ‘clarification needed” and “dubious – discuss”.
The IPONZ guidelines themselves point out exceptions such as the recording of a discovery in print. While that constitutes a physical effect it is not one that is ‘central” to the discovery and hence does not of itself render the discovery patentable, they say.
A submission from the Airways Corporation refers to its air-traffic control software as having the undoubted physical effect of avoiding mid-air collisions; yet since it achieves that effect by communicating and displaying data, it is not embedded software within many accepted meanings of the term, particularly those that exclude any software that runs on a general-purpose computer.
“We are concerned that vital air-traffic systems would not be patentable under the current guidelines,” Airways says.
Several submissions contend that the IPONZ guidelines will have no real weight in law and will in due course be superseded by a literal interpretation of Section 15(3A) or by case law formulated by judges.
The guidelines rely heavily on a test (called the Aerotel test) drawn from UK law, but some submissions say since the Bill and guidelines are not elsewhere consistent with UK law, this creates confusion. The International Federation of Intellectual Property Attorneys contends that the Aerotel test has been outdated by subsequent UK case-law. By relying on the test, “New Zealand risks isolation in the worldwide intellectual property community,” the Federation says.
A number of submitters, for example Geological and Nuclear Sciences, suggest that NZ should not stand out on its own but harmonise its law more clearly with that of Australia, the US or Europe, where our major markets lie.
Submissions from entrenched champions of software patent such as Microsoft and NZICT, as well as some from more equivocal sources, suggest the best course might be to scrap s15(3A) altogether.
Commerce Minster Simon Power, announcing the intention to formulate the guidelines, in July last year, saw them as making it possible for the Patents Bill to proceed through its remaining stages independently of debate on the guidelines themselves. Indeed, he expected the Bill to pass before the guidelines were finalised.
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