Here are the top 10 reasons why the Government should support SOP 123 to replace the problematic “as such” proviso in the Patents Bill:
1. The current “as such” wording fails to exclude software patents
The Government claims that the current Patents Bill will exclude software patents. But a top QC has confirmed that it fails to do that – instead computer programs will remain patentable, except in specific circumstances. If the Government does still intend to exclude software patents – as it claims – then the “as such” proviso must go.
Update: intellectual property expert Doug Calhoun has confirmed this: “The effect of the [as such] exclusion is that there is no real change in the law.”
2. It will be hailed by the local IT industry
Well over 1,000 (and counting) software developers and supporters back SOP 123 (which implements the wording requested in the petition), including New Zealand’s two largest software exporters – Jade and Orion Health – and personnel from other leading kiwi firms such as Xero. Supporting SOP 123 to clearly exclude software patents (as the Government says is intended) will be hailed by this valuable – and well connected – community.
3. It is consistent with the Commerce Committee’s unanimous recommendations
The Commerce Committee was unanimous and clear: computer programs should be excluded from patentability. They certainly did not recommend to “effectively allow the patentability of computer programs except where these have no technical effect”, which is what a top QC says will occur under the current Bill. SOP 123, on the other hand, is consistent with the Commerce Committee’s intentions, as it clearly excludes software patents.
4. It is consistent with the Minister’s own words
Commerce Minister Craig Foss said the “as such” change to the Patents Bill was to exclude software patents but ensure that:
“inventions that make use of embedded computer programs will be patentable.”
We now know that “as such” will have a different effect. But SOP 123 will achieve the Minister’s stated intention, and uses words almost identical to the Minister’s own:
Subsection (1) does not prevent an invention that makes use of an embedded computer program from being patentable.
SOP 123 therefore achieves the Minister’s intention, consistent with his own words.
5. It is consistent with the Government’s previous statements
Prior to the introduction of the “as such” proviso, the Government had on many occasions confirmed that the Commerce Committee’s unanimous recommendation had been accepted. But the introduction of the “as such” proviso reverses this position by allowing software patents to continue. SOP 123 brings the Bill back to consistency with the Government’s previous statements, by actually excluding software patents.
6. It is a plain-English improvement to the convoluted and problematic “as such” proviso
The “as such” proviso has proven controversial in Europe, controversial between New Zealand and Australian patent attorneys, and has even been described as having an “ambiguous nature” by the World Intellectual Property Organisation (WIPO) itself. Is that what we want in the Patents Act?
7. It raises no issues under TRIPS
MED has confirmed that no software patent exclusion, anywhere in the world and in any form, had ever caused TRIPS problems, despite 64 countries excluding software from patentable subject matter.
8. It costs nothing, only clarifies
Kiwi software developers do not ask for much. They don’t ask for subsidies or tax breaks, or cause political headaches with pollution, etc. The one time the IT industry asks the Government for something, it is to clarify one sentence in a Bill to ensure an outcome the Government says it wants anyway.
This is a very small and reasonable ask, from a very important and valuable industry. Will the Government listen?
9. It will give the Patents Bill broad support in the House
The Patents Bill has mostly enjoyed broad support in the House, and so it should. The controversy over the late “as such” change is simply because it will fail to do what it claims to do. SOP 123 will clarify this and result in a better law. This is all that is required for the Bill to regain broad support for its third reading.
10. There is no “politics” in it
This change is about clear law. It simply seeks to fix one sentence in the Bill that currently fails to achieve what it is supposed to achieve. This should not be controversial. Clear law is not a political issue, and there is no reason for legislators not to support SOP 123 to achieve better law.
If the Government wishes to retain software patents, then it should say so, and keep the “as such” wording. But If the Government remains committed to implementing the Commerce Committee’s recommendation to clearly exclude software patents – as it claims – and in a manner supported by the local IT industry, then it must support SOP 123.