Saturday, September 8, 2012

Patents Bill - The Green approach

GrassI have always admired the Green Party. They are genuinely nice people and they have some good policies on environmental issues.

What I tend to forget is that the Party has policies in areas outside environmental issues. I am often surprised when some of these policies emerge. One example is the Party's stance on the New Zealand Patents Bill.

The Patents Bill had a First Reading back in May 2009. Hansard records Green MP Kevin Hague as the only MP to mention computer software. He states that
'[t]he bill proposes that software should be patentable; the opposite direction to that being pursued by the European Union. This is a very bad idea.'
Reading the remainder of the member's speech on computer software, I hope that the research for it was more than just typing the words "richard stallman" into a web browser.

The Green Party was presumably aware of a Discussion Paper prepared by the Ministry of Economic Development (now called the Ministry of Business, Innovation and Employment) in March 2002 titled "Review of the Patents Act 1953: Boundaries to Patentability". The Discussion Paper records on page 46 that computer-implemented inventions have been patentable in New Zealand since at least 1995. On page 48 the authors state that computer-implemented inventions are patentable in Europe, provided the software is directed to carrying out a "technical process".

That's why I was surprised to see a recent press release from the Green Party titled "Govt backtrack on software patents damaging". The press release states that:
'[t]he Minister of Commerce, Craig Foss, tabled in Parliament last night amendments to the Patents Bill that will, in practice, open the door to the patenting of software despite the Parliamentary Select Committee's decision to explicitly leave software out.'
I cover the Supplementary Order Paper (SOP) setting out proposed amendments to the Bill in an earlier blog post.
According to a Government press release, the SOP introduces a minor amendment to clarify whether computer programs are patentable. Under the amendment, computer programs 'as such' will not be eligible for patent protection. It was never the intention of the Commerce Select Committee to exclude all software-related inventions from patentability. The SOP better reflects the Commerce Select Committee's intention.

The Explanatory note accompanying the amendment 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".

It seems strange to me that the Greens complained back in 2009 that the Patents Bill did not contain a European-style exclusion, and now complain about a Supplementary Order Paper that introduces one.

Photo courtesy of author DBduo Photography under Creative Commons licence.

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