Changes to wording in Patents Bill raises alarm

New wording introduces the words 'as such' in reference to computer programs

The Patents Bill’s provision disallowing patents on software could have the previously much-discussed qualification “as such” inserted in the text.

The intent is to clarify that the bar on patents applies only to the actual software, not to machines controlled by software.

“Under the amendment, computer programs as such would not be eligible for patent protection,” says an explanatory statement by Commerce Minister Craig Foss, sponsor of the Supplementary Order Paper introducing this and a raft of other amendments to the Bill, now approaching its second reading. “However, inventions that make use of embedded computer programs will be patentable.

“The Bill will continue to protect genuine innovations and encourage Kiwi businesses to export and grow,” Foss says.

The core statement on software in the current text of the Bill simply states “a computer program is not a patentable invention.” A substantial group of software developers and other industry figures support retaining this statement in its simple form. Other sources, however – for example lawyers Chapman Tripp in an article last year suggest that this simple version is at variance with the international TRIPS intellectual-property treaty, which says patents should be applied to technological inventions “without discrimination”.

Foss’s SOP would remove entirely the simple statement above - Section 15(3A) in the second reading text - and insert a new section 10A (after the definition of a “useful” invention in s10) reading: “A computer program is not an invention for the purposes of this Act", but adding a subsection stipulating that provision “prevents anything from being an invention for the purposes of this Act only to the extent that a patent or an application relates to a computer program as such.”

“The minister may believe that replacing the explicit exclusion of software patents with an "as such" is striking a clever compromise,” says NZ Open Source Society president Dave Lane. “If that is the case, he needs to be disabused of his mistaken impression: those six letters represent a legal loophole the size of a bus, which have made a mockery of the European Union patent legislation's intent: to block software patents.”

In a blog post on the Society’s website, he supports this with links to legal commentary and Wikipedia’s article on the European legislation.

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