Tuesday, August 28, 2012

A makeover for the Patents Bill

Color Cosmetics Rabbit In an earlier post I mentioned that the current government has succeeded in slipping the Patents Bill into an economic policy agenda to make it less boring to the general public. It is working. Today's Parliamentary Order Paper lists the Patent Bill as number 5 in a list of 60 Government Orders of the Day.

There is even a Supplementary Order Paper (SOP) dated 28 August 2012 setting out proposed amendments to the Bill as it heads into a Second Reading. There appear to be a few amendments in three main areas.

Sanity check

During the Select Committee process the Ministry of Economic Development (MED) prepared a Supplementary Report to the Commerce Select Committee in January 2010 ("the January Report") on the issue of the patentability of computer programs.

The report recommended 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 desire for a European-style exclusion was echoed in many of the submissions. For example, there were three written submissions from the New Zealand Open Source Society (NZOSS). The first of these submissions favoured harmonisation with Europe. The submission suggested that "New Zealand could follow the European lead in patent law, and explicitly exclude software from being patentable".

It was surprising to see the Select Committee recommend an exclusion that did not follow European law, despite advice and submissions to the contrary. The exclusion inserted by the Select Committee, clause 15(3A), simply reads "A computer program is not a patentable invention."

The Supplementary Order Paper replaces the exclusion in clause 15(3A) with new clause 10A. This new clause reads as follows:
10A Computer programs
(1) A computer program is not an invention for the purposes of this Act.
(2) Subsection (1) 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 Explanatory note states that the new clause is "considered to be more consistent with New Zealand's international obligations ... [and] is also more consistent with overseas precedents and makes it clear that it is only computer programs themselves that are ineligible for patent protection.

I guess it took a new Minister to perform a sanity check on the original exclusion.

The digital age

New clause 278A amends the regulation-making powers and other provisions to ensure that a fully electronic patent system can be implemented. It will now be a requirement that all requests, applications and other documents must be filed electronically.

Timing issues

Other clauses in the SOP recognise the fact that the Patents Bill has been waiting for a Second Reading for a while. Clause 2(3) is amended to extend the date for the Act coming into force from 31 December 2012 to 31 December 2013.

New clause 293A empowers transitional regulations to be made to enable an orderly implementation of the transition from the Patents Act 1953 to the new Patents Bill given the complex nature of reform. The transitional period is three years.

Photo courtesy of author laverrue under Creative Commons licence.

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