Commerce Minister Craig Foss has today released a supplementary order paper (SOP) to clarify issues around the patentability of computer programmes in the Patents Bill.
“Following consultation with the NZ software and IT sector, I am pleased to be further progressing the Patents Bill with this SOP. These changes ensure the Bill is consistent with the intention of the Commerce Select Committee recommendation that computer programs should not be patentable,” says Mr Foss.
Today’s change is to codify a test set out in UK case law to provide clarification around the “as such” wording used in SOP 120 (tabled 28 August 2012).
“I would like to thank the NZ software and IT sector for their engagement over the last few months. I’m confident we’ve reached a solution where we can continue to protect genuine inventions and encourage Kiwi businesses to export and grow.
The SOP is here. A key extra clause is:
A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.
There had been considerable concern that the previous proposed wording with the “as such” clause could lead to a lack of clarity in the law, and that it might not achieve its intention that software is not patentable. This extra clause provides that clarity and is excellent news from the Government and Minister,
To also achieve greater clarity, the SOP provides an explicit example of what is not patentable in terms of software, namely that a chip for a washing machine is, but an online filing software system is not (the code is copyrighted though).
The Institute of IT Professionals has welcomed the announcement:
The Institute of IT Professionals, New Zealand’s largest IT representative body, strongly supports the Government’s announcement today clarifying that software will not be patentable in New Zealand, removing a major barrier to software-led innovation. …
“The Institute thanks Minister Foss for responding to industry concerns, clarifying the Patents Bill’s intention to remove patentability of software and for taking extra steps to ensure the law around software patents is clear and unambiguous,” Matthews said. “Software will not be patentable in New Zealand and a major barrier to software innovation has been removed”.
“We also acknowledge the work of United Future’s Peter Dunne, Labour’s Clare Curran and other political parties who have listened to the industry’s concerns and contributed towards a solution,” Matthews said. “It’s great that all parties support software-led innovation in New Zealand.”
I’d agree with the IITP that MPs from several parties helped contribute to getting a law that will be clear and good for New Zealand. The recommendation to do so was a unanimous one by a select committee.
Ian McCrae, chief executive of New Zealand’s largest software exporter Orion Health agreed, saying today “We welcome this announcement. Under the current regime, obvious things are getting patented. You might see a logical enhancement to your software, but you can’t do it because someone else has a patent. In general, software patents are counter-productive, often used obstructively and get in the way of innovation. We are a software company and as such, our best protection is to innovate and innovate fast.”
John Ascroft, Chief Innovation Officer of Jade Corporation said “We believe the patent process is onerous, not suited to the software industry, and challenges our investment in innovation.”
Orion and Jade together account for around 50% of software exports from New Zealand.
The decision is also welcomed by InternetNZ:
InternetNZ (Internet New Zealand Inc) welcomes today’s tabling of a Supplementary Order Paper (SOP) that makes it clear that computer software is not patentable in New Zealand. …
The question of software patents has been an important issue for InternetNZ for several years. InternetNZ has previously made submissions on the issue, noting that software is inextricably linked to the good functioning of the Internet. Patenting software would not only make the continued development of the Internet more difficult, it would reduce innovation and could well stymie interoperability of various software platforms.
InternetNZ spokesperson Susan Chalmers says InternetNZ is happy to see the issue now resolved and looks forward to the passage and implementation of the Patents Bill, a long-awaited and much needed update to a large component of New Zealand’s intellectual property regime.
So it is a good outcome all around. Congratulations to Craig Foss for constructively working with industry groups to get this issue resolved, and kudos to other MPs such as Peter Dunne and Clare Curran who supported getting a good law.
I’m personally very pleased that National has taken a balanced approach on intellectual property issues. While of course there are areas of disagreement, the current Government has consistently moved things in the right direction. To name a few:
- Repealed the previous three strikes guilt upon accusation copyright law
- Suspended the provision for termination of Internet accounts for repeat copyright infringement
- Set the copyright infringement filing fee at $25, $5 higher than recommended by officials
- Kept the fee at $25 when reviewed, despite massive opposition from the MPAA
- Have consistently rejected the US proposed IP chapter for the TPP
- Amended the law to exclude software from being patentable
Now as I said, there are still a few areas I’d like further change. but overall the direction in the last few years has been a positive one.