Commerce Minister Craig Foss has admitted that his purportedly clear “as such” amendment to the software patent exclusion in the Patents Bill actually isn’t so clear after all. In a letter to me dated 16 October, Minister Foss now admits:
- His “as such” amendment introduces a “grey area” to the software patent exclusion;
- His amendment makes it impossible to achieve a “bright line” exclusion of software patents;
- It is not certain whose jurisprudence our law will follow; and
- The country whose approach we will “likely” follow still allows software patents.
Here are the Minister’s words:
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. This may well result in the grant of patents which some may regard as software patents.
So the Minister is still supporting the “as such” change that he now admits will inevitably create a “grey area” that “may well” result in what are regarded as software patents continuing to be granted in New Zealand. Oh dear #1. The Minister is now simply contradicting his earlier assurances. He is also admitting that the change actually prevents a clear (“bright line”) exclusion of software patents. Why, then, does he continue to support it?
More worryingly, Minister Foss’s letter also states:
There is a significant amount of case law from the United Kingdom courts regarding what is and what is not a computer program “as such”. While the New Zealand courts are not bound by United Kingdom case law, they are likely to look to it for guidance. This provides a degree of assurance about how the “as such” wording is likely to be interpreted.
Oh dear #2. We have the chance to write a Bill that does have a specific and clear effect, but instead the Minister admits that his amendment will only have a “likely” effect, and one that is “likely” to fail to fully exclude all software patents. In other words, it is uncertain: the Minister is admitting he is leaving it to chance. No sensible lawyer drafts contracts to have only a “likely” effect, and no sensible Minister should propose legislation that he admits might turn out differently from what is (supposedly) intended. Minister, you’ve got the chance to expressly state what the law will do – why are you leaving it to chance?
The Minister continues:
It is clear from this case law that most computer programs cannot be patented in the United Kingdom.
Oh dear #3. By acknowledging (perhaps optimistically) that the UK excludes “most” computer programs (though the amount is debatable), he has admitted that the UK still does allow some software patents. If his intention is to exclude all software patents, then why is he still supporting a change that is “likely” (in his view) to fail to achieve that result? And, if the intention is to make all software non-patentable, then why is he concerned about being able to access a “significant amount of case law” about which software is and isn’t patentable?
Another question is why is the Minister sheepishly adopting European language that has proven so problematic, and which even WIPO has said is “ambiguous”? The Minister’s letter holds up TRIPS as the reason for adopting Europe’s problematic “as such” wording:
The “as such” wording is also consistent with the WTO TRIPS Agreement.
But hang on: here’s what the Minister said in another letter of 11 October:
There is also no requirement in the TRIPS Agreement that Members must grant patents over computer programs. Members have the flexibility to decline to grant such patents.
So why then is the Minister holding up TRIPS as an excuse for adopting law that by his own admission fails to exclude all software patents?
There are many unanswered questions. Minister Foss is simply tying himself up in knots trying (but failing) to defend the irrational, unwanted, and unneeded “as such” amendment to the Patents Bill.