The October Report set out three options for the Committee. These are:
(a) exclude all software from patent protection, including embedded software;
(b) leave things as they are; or
(c) adopt a hybrid UK/EPO approach.
For reasons known only to the Committee, it asked for a further briefing on the issue of the patentability of computer programs. This resulted in the Supplementary Report to the Commerce Select Committee in January 2010. The Committee still supported some restrictions on the patenting of software, while retaining the patentability of "embedded" software.
At the request of the Committee, the MED prepared the January Report that looked at two possible approaches. These were:
(a) allow patents on embedded software & exclude all other software; or
(b) exclude computer programs from patent protection.
Option A in the January 2010 report was not the MED preferred option. There is no simple definition of "embedded" software that could be incorporated into the Bill. IPONZ would not be able to make use of case law or practice developed elsewhere. The MED found that "there is no simple definition which exactly captures the idea of 'embedded software' or 'embedded systems'". Devising a simple definition would "likely be difficult, if not impossible". Technical advances may "mean that any definition fixed in legislation becomes obsolete fairly quickly". No other country has attempted to make the distinction between "embedded" and "non-embedded" computer programs in patent legislation.
MED made it clear that Option A was certainly not the MED preferred option.
Remember that the MED preferred option was to leave things as they are, as stated in the October Report. When pressed by the Committee, it came up with the next best thing.
Option B in the January 2010 report suggested an exclusion from patent protection for computer programs, "the wording of the exclusion being similar to, or the same as, the exclusion for computer programs contained in the EPC and the UK Patents Act." The MED report stated that "IPONZ has indicated that if such an exclusion was provided, it would use EPO and UK case law and practice to interpret the exclusion".
The report went on to state that "despite what appears to be a 'blanket' exclusion, the EPO and UK courts have ruled that some types of computer programs can be patented. In general, if an invention involving a computer program possesses a 'technical character' it will be patentable."
Option B was the MED preferred option of the two options in the January 2010 report.
This option is the only option that can be sensibly reconciled with the statement in the commentary to the Patents Bill that says "we received advice that our recommendation to include computer programs among the inventions that may not be patented would be unlikely to prevent the granting of patents for inventions involving embedded software." Option B is the only option that makes sense.
It is clear that the Commerce Select Committee chose Option B (European law) from the January 2010 report. However, the wording of the exclusion proposed by the Committee does not reflect the intention of the Committee to follow European law.