Friday, November 4, 2011

Patent law reform hits a snag

Windy road ahead
This week I came across an interesting article by Auckland University Commercial Law senior lecturer Rob Batty.

He comments on a proposal in New Zealand to exclude computer programs from patentability as a controversial change that “emerged at the eleventh hour when the [Parliamentary Commerce] Select Committee reported back on its review of the Bill.”

He notes the exclusion “appears to stem from submissions by open-source advocates who contend that software development does not involve an inventive step, but simply builds on what has gone before.”

The Patents Bill, he observes, will introduce examination for obviousness, a world-wide novelty standard, and streamlined challenge procedures.  These are all measures that will improve the quality of patents granted in New Zealand.

It is clear, in my view, that many concerns expressed by those who opposed patents for “software” can be addressed without a discriminatory exclusion.

He also makes the point that policy should be driven as much as possible by objective evidence.  He notes that the Commerce “Select Committee did not receive objective evidence of economic harm caused by allowing computer programs to be patented”.  Quite the opposite.

As I have said in an earlier article, people making submissions to the Commerce Select Committee who were opposed to “software” patents emphasised that innovation is strong, even “rampant,” with the law that’s in place. One said the software industry is “highly competitive, innovative and prosperous,” and another pointed out that New Zealand was appealing “due to the healthy and innovative software industry here.”

Statements like these suggest those who were most opposed to “software” patents had not experienced any detrimental effects from our current law in which patents have been allowed for computer-implemented inventions for nearly two decades.

Maybe we will see a few more twists in the road towards reform of New Zealand’s patent law.

Photo courtesy of author Dawn Loh under Creative Commons licence.

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