Foss: Patents Bill could allow “hundreds of software patents”

Commerce Minister Craig Foss says that “hundreds of software patents” are likely to fall within the “grey area” he has introduced into the Patents Bill, according to a new letter from the Minister.

Last week, Minister Foss acknowledged that his “as such” amendment created a “grey area” that would make it impossible to clearly exclude software patents.

In a new letter dated yesterday, Minister Foss goes further, acknowledging that “hundreds of software patents” would likely fall within the grey area that his last-minute amendment to the Bill creates:

It is clear from decisions of the European Patent Office (EPO) that it is impossible to draw a “bright line” between computer programs “as such” (unpatentable) and other inventions which merely make use of computer programs (potentially patentable). Inevitably there is a “grey” area between the two. My officials advise me that the “hundreds of software patents” referred to in your letter are likely to fall within this “grey” area.

So hundreds of software patents are “likely” to fall within the same “grey area” that Minister Foss is introducing into the Patents Bill, by adopting the European “as such” language. But didn’t the Minister say he wanted to exclude software patents?

The Minister’s letter goes on to claim that these “hundreds of software patents” granted via the equivalent “as such” clause in Europe represent only a “tiny fraction” of the total patents granted in Europe – as if having proportionally more drug, manufacturing and other patents somehow means the harmful potential of software patents is lessened.

Again this begs many questions:

  • Why is Minister Foss changing the Patents Bill in a way that, by his own admission, creates a “grey area” that could allow “hundreds of software patents” to continue to be granted in New Zealand?
  • What benefit to New Zealand does Minister Foss see in deliberately introducing a “grey area” around software patents into the Patents Bill?
  • Why does Minister Foss want to allow any software patents to be potentially granted in New Zealand anyway?
  • Can Minister Foss give any assurances whatsoever to New Zealand software developers that they will not be harmed by any software patents granted as a result of his last-minute “as such” change to the Patents Bill?
  • Allowing “hundreds of software patents” is certainly contrary to the unanimous recommendation of the Commerce Committee to exclude software patents. So why is Minister Foss unilaterally overruling the Committee’s unanimous recommendation?

The Minister also claims that the analysis of leading IP expert Andrew Brown QC “does not reflect the actual situation”, but gives no reasons for such a summary dismissal.

These are important questions. New Zealand’s IT industry has resoundingly rejected software patents, yet the Minister is content for his new Bill to allow them by the hundred. Why?

2 thoughts on “Foss: Patents Bill could allow “hundreds of software patents”

  1. Perhaps the minister’s “officials” have promised Microsoft, IBM, and the NZICT group, among others, that the exclusion won’t be… very exclusive – here’s an indication (this blog post has been tabled in parliament):

    It’s becoming increasingly untenable for the minister to assert he’s doing one thing (excluding software patents), while his officials are working hard to ensure that the opposite (that software patents are still granted) is true.

  2. As I understand the Minister’s position, if New Zealand follows the overseas interpretation of “as such”, a computer program on its own is not an invention, but as soon as a program is implemented on a computer, it becomes an invention and is thus potentially patentable. The practical effect of SOP 120 would be that New Zealand software developers have no protection from claims of patent infringement. I do not think that ignoring a founding theorem of computer science is a good way to make law. We may as well prosecute geologists for not predicting earthquakes.

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