Microsoft, A J Park support Patents Bill change

Update 12pm: NZICT supports amendments; pro-software patent industry representatives say changes will bring clarity

Update 12pm:

Industry group NZICT has come out in support of the amendment to the Patents Bill. In a press release CEO Candace Kinser says the changes will "encourage new technology developments."

"This Bill will aim to align New Zealand with Australian laws for processing patents to create a single trans-Tasman patents examination regime, and bring our process into international best practice standards," says the release.

"Importantly, Clause 15(3A) would have excluded computer programs from patentability, stating that “a computer program is not a patentable invention”. If passed into law, the clause would have been unique in the world, adding to filing costs for multi-country patent applications and discriminatory for New Zealand. Clearly that would have been inconsistent with the objective of enhancing exports and cross-border trade."

Original article

Industry representatives who lobbied for the inclusion of software patents in the Patents Bill are pleased with the amendments detailed in the Supplementary Order Paper yesterday.

“Microsoft welcomes the government’s decision to clarify the language of the Patents Bill,” says Waldo Kuipers, Microsoft corporate affairs manager

Kuipers was one of the architects of a June 2010 meeting of pro-software-patent industry representatives with Ministry of Economic Development officials after the select committee had reached its conclusions, aimed at persuading the government to change its mind.

In an email he refers Computerworld to a blog posted in April 2011 on Microsoft’s GovTech site where an unnamed Microsoft contributor says the unamended form of the software clause would create uncertainty.

“We think the focus should be on patent quality, not on an arbitrary exclusion,” says the blog. “However, if there must be an exclusion, the question must be asked: ‘How can inventors and investors make decisions about their commercialisation strategy if it is not even clear which inventions are now to be excluded from protection?’

“If no patentable inventions are to be excluded from protection, or no one can say with certainty which patentable inventions (if any) it will exclude, clause 15(3A) will just be a troublesome white elephant, leading to years of pointless litigation to figure out something the government can easily fix now with the stroke of a pen.”

The blog appends a pie-chart analysis of submissions on the Bill, claiming about 2/3 of them supported change to or complete deletion of the controversial clause.

Kuipers’ email to Computerworld also links to the Chapman Tripp article cited in our earlier story and to a comment on the latest SOP by Matt Adams, partner at patent attorneys A J Park. Adams says the Select Committee and MED previously showed themselves inclined to a harmonisation with European law and the bald statement “a computer program is not a patentable invention” contradicted that.

Adams quotes the explanatory note to Foss’s SOP, saying the amended clause is “considered to be more consistent with New Zealand's international obligations ... [and] is also more consistent with overseas precedents and makes it clear that it is only computer programs themselves that are ineligible for patent protection.”

“I guess it took a new minister to perform a sanity check on the original exclusion,” Adams says. When the original exclusion was written into the Bill, Simon Power was Commerce Minister.