Select Committee review of the Patents Bill

Submissions to the Select Committee on the Patents Bill closed on 2 July 2009. My submission on software patents is here:

This submission is deliberately “narrow”. The current hearing is the 3rd stage of a review that’s been going on for 9 years, and the Patents Bill, introduced by the former Labour-led government has already had its 1st reading in the House by the current National-led government. It appears unlikely that the Committee will consider major changes to the Bill at this stage. There had been concerns expressed earlier in the process about leaving controversial issues such as software patents to the final stage of the review (which is when a Select Committee review occurs). However, that is the current situation.

Therefore, the Committee should be given very tight, focused, narrow reasons to change the Bill to exclude software patents (as opposed to broad and wide-ranging reasons). Much of the debate focuses on democracy/human rights, free expression, economic/anti-competitive issues, “unfair” tactics by multinational corporations, trade issues, etc. In my view, the committee will not want to get anywhere near those sorts of issues at this late stage. I have no doubt that attempting to tie all of those concerns in with software patents will make the whole issue “too hot to handle” and the committee will simply kick for touch and maintain the status quo.

At this stage the Committee will most likely:

  1. Want to do as little work as possible to finish the review; and
  2. Avoid any potential political risks for a Bill with bipartisan support (i.e. not rock the boat).

I have deliberately focused on two specific points: the purpose of the Patents Bill, and the apparent legislative incompatibility of the language in the Bill. These are issues that Select Committees are comfortable looking at. If it can be shown that there is a problem/inconsistency with the actual Bill itself (e.g. purpose is inconsistent with operation), they are much more likely to make a change to the Bill than on grounds that requires the Committee to take what they may see a bold step.

I did not mention TRIPS, partly because of time constraints, but it is a valid issue and I have seen a couple of good submissions on that point.

It is also important to suggest an amendment that is very specific and “safe” for the Committee (or more probably the Parliament Counsel Office) to introduce without introducing “regression errors” into the Bill at this late stage. My proposal is to add the following clause:

15 (6) An invention is not patentable to the extent it is implemented in software.

It will be interesting to follow progress.

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