Has Craig Foss come good on software patents?

Following much self-inflicted confusion caused by his last-minute “as such” amendment to the Patents Bill, there are now signs that Commerce Minister Craig Foss may finally heed the calls of New Zealand software developers and ban software patents.

In comments to the NZ Herald last week, Foss said this:

The “as such” limitation ensures that computer programs cannot be patented.

Likewise, in a letter dated yesterday, Foss said:

… I would like to further reassure you that the “as such” wording will not lead to computer programs continuing to be patentable in New Zealand.

… the “as such” wording …. will mean that computer programs will no longer be patentable in New Zealand.

So there we have it: clear, emphatic assurances from the Minister in charge of the Patents Bill that following passage of the new law (as amended by Mr Foss), computer programs will no longer be patentable in New Zealand. Which is great, right? After all, isn’t this what New Zealand software developers have overwhelmingly demanded?

Well yes, but the problem is that Minister Foss’s latest assurances contradict his earlier comments that his “as such” amendment would create a legal “grey area and allow “hundreds of software patents” to continue to be granted in New Zealand. It also confirms that Minister Foss is squarely at odds with leading IP lawyers who have said that his “as such” amendment will allow software patents.

It will surely also leave members of pro-software patent multinational group NZICT scratching their heads. Following Minister Foss’s “as such” amendment to the Patents Bill last year, NZICT CEO Candace Kinser told her members this:

You may have seen the press release that NZICT generated two days ago voicing support of Hon Craig Foss’ announcements to progress the stalled Patent Bill amendments. Included in this announcement was the decision to allow computer programs as patentable.

So NZICT was happy because they thought Foss had decided to allow software patents. Let’s contrast that with Foss’s recent public assurances about the new Patents Bill:

  • The “as such” limitation ensures that computer programs cannot be patented. – Minister Foss, 5 February 2013
  • … the “as such” wording will not lead to computer programs continuing to be patentable in New Zealand – Minister Foss, 12 February 2013
  • … computer programs will no longer be patentable in New Zealand  – Minister Foss, 12 February 2013

The Minister’s assurances are the polar opposite of what NZICT claimed last year. So it is clear that much confusion has arisen as a result of the Minister’s last-minute amendment to the Bill. But Minister Foss has now clearly stated (even “ensured”) that computer programs will not be patentable under the new Patents Bill. The onus is therefore on Minister Foss to clear up this situation once and for all, for the benefit of everyone.

Of course, the best way of doing so would be to drop his “as such” clause which sparked all this confusion in the first place. But if the Minister isn’t willing to do so (for whatever reasons), then the least the Minister can do is answer the following very simple questions, which I will add as “supplementaries” to my list of 10 questions for the Minister.

Supplementary to the Minister:

  1. Does the Minister stand by his statement in the New Zealand Herald on 5 February 2013 that “The ‘as such’ limitation ensures that computer programs cannot be patented“?
  2. Does the Minister stand by his statements in a letter dated 12 February 2013 that “the ‘as such’ wording will not lead to computer programs continuing to be patentable in New Zealand” and “computer programs will no longer be patentable in New Zealand“?
  3. Can the Minister confirm that those statements accurately reflect the intention of the Patents Bill as it relates to patents for computer programs?
  4. Does the Minister agree with the claim by the CEO of NZICT that the intention or effect of the Patents Bill is to “allow computer programs as patentable“.
  5. If the Government will not remove the ‘as such’ clause from the Patents Bill, then will the Minister at least include in the explanatory note the statement that he made to the New Zealand Herald on 5 February 2013, that “The ‘as such’ limitation ensures that computer programs cannot be patented.”; and if not, why not?