Commerce Minister Craig Foss, by seeking to relocate the “computer program” exclusion in the Patents Bill and add the words “as such” to “computer program”, is inserting “deliberately ambiguous” phraseology, which “will suit the patent attorneys who bring cases to court,” says Opposition ICT spokesperson Clare Curran.
Computerworld has sought further comment from both MPs on their rival Supplementary Order Papers, both set to be considered in the next (Committee) stage of the Bill’s passage through Parliament.
Both MPs claim to be “clarifying” the intent of the Commerce Select Committee, that software should not be patentable, but that machines using software are not excluded from patentability by that fact alone.
Foss claims to be bringing NZ legislation closer to overseas counterparts. However, court cases brought under European patent law, phrased in similar vein, “demonstrate that 30 years of litigation has not helped in further defining the issues”, Curran says.
She asks from whom Foss took advice in phrasing his amendment; “only from officials and [software industry body] NZICT? Did he go wider?”
“This issue has been thoroughly considered by Ministry of Business, Innovation and Employment officials, alongside legal advice,” Foss replies.
“Craig Foss appears to have bought the line of Microsoft and IBM (aka NZICT) without consulting wider or consulting back with the select committee,” Curran says. “Why is that? Has he been captured by the big multinational corporates at the expense of the smaller Kiwi developers? Is he prepared to discuss the issues with those affected and with the select committee? Does he accept that his officials may not be giving him the best advice?”
Questioned specifically on influence from multinational companies known to champion software patents, Foss simply reiterates: “The proposed amendment is intended to clarify the Commerce Select Committee’s intention that computer programs not be patentable.”
As well as qualifying the “computer program” provision, Foss’s SOP moves the clause from Section 15 of the Bill to Section 10, dealing with useful inventions. It says a computer program is not an invention for the purposes of the legislation.
“Section 15 deals with exclusions from patent protection,” Foss explains. “The TRIPS agreement, which New Zealand is party to, only allows limited exclusions from patent protection. Computer programs are not listed as an allowable exclusion, so the previous Section 15 wording may have been inconsistent with the TRIPS agreement.”
Curran’s amendment states that the exclusion “does not prevent an invention that makes use of an embedded computer program from being patentable.” In her opinion this is a clearer statement of the Select Committee’s intent.
Foss counters: “There is no universally accepted definition of ‘embedded software’; no other country’s patent legislation uses this term and any definition that might be adopted by IPONZ [the Intellectual Property Office of NZ, part of the Ministry of Business, Innovation and Employment] or the courts, would be quickly rendered obsolete by technological change. This SOP could actually have the opposite of what was intended by its supporters”
The SOPs (along with the First and Second Reading copies of the Bill) are available online. SOP 120 contains Foss’s suggestions for the “computer program” provision and SOP 123 includes Curran’s alternative.