No select committee for Patents amendment

TOM PULLAR-STRECKER
Last updated 15:49 03/09/2012

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Commerce Minister Craig Foss says the Government will not refer a controversial amendment to the Patents Bill concerning software patents back to a select committee for consideration.

That was despite criticism from the Labour Party over what it described as a "climb down".

Foss disappointed large tracks of the software industry last week when he announced the Government would amend the Patents Bill by including a clause that qualifies a ban on software patents. 

The New Zealand Open Source Society labelled the clause a "betrayal".

The ban had initially been accepted by Foss' predecessor, Simon Power, though officials carved out a tortuously-worded seven-page exception for software with a "technical purpose", saying the select committee had understood the ban would not apply to software embedded in machines.

Instead of those guidelines, a rider has been added to the bill that says the ban would prevent anything from being an invention for the purposes of the act "only to the extent that a patent or an application relates to a computer program as such".

Labour communications spokeswoman Clare Curran said the change had dealt New Zealand's growing software industry a "cruel blow", opening the door to the widespread patenting of software.

Foss had caved in to pressure from big corporations and Kiwi software firms would now face real challenges developing new software, she said.

"The minister should have stuck to his predecessor's plan to get the Intellectual Property Office to develop guidelines for inventions that involve 'embedded software'," she said.

Green Party ICT spokesman Gareth Hughes said the amendment should be withdrawn or at least sent back to the Commerce select committee "for proper public scrutiny".

But Foss said the amendment did not change the intention of the select committee, so there was "no need" to send the bill back.

"I do not see any justification for delaying passage of the Patents Bill further, particularly given the benefits to New Zealand in having modern patent legislation," he said.

"This proposed amendment is consistent with the committee's intention, expressed in its select committee report, that computer programs should not be patentable, but that inventions involving 'embedded' computer programs should still be patentable."

Tensions within the software industry over the Patents Bill bubbled over last week when Auckland software firm SMX, whose investors include Trade Me founder Sam Morgan, cancelled its membership of industry lobby group NZICT in protest over its support for the amendment.

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Matt Adams, a patent expert with law firm AJ Park, whose clients include Microsoft, and a vocal critic of the original ban, said he believed Foss had done the right thing.

The qualifying clause was "not great" but was in keeping with patent law in Europe which would mean courts here could benefit from 30 years' of case law when it came to interpreting it, he said.

Adams said the Patents Bill included other changes that reduced the likelihood of nuisance patents stymying innovation.

These included a new requirement that meant patent examiners would need to check applications to ensure patents included an "inventive step" and other changes that would make it easier to challenge patents that had already been granted.

- © Fairfax NZ News

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