Patents Bill - 3rd Reading Approaches

Disclaimer: this is the view of the coordinators of this site following the 2nd reading of the Patents Bill in NZ Parliament, andthis view is not necessarily shared by all the petition co-signers.

The situation prior to the 3rd Reading ("Committee Stage") of the Patents Bill is that Commerce Minister Craig Foss continues to stand by the recommendations of his officials in MBIE (formerly of MED). He has not withdrawn the controversial clause 10A(2) - introduced just prior to the 2nd reading as Supplementary Order Paper 120 - which has caused us to mount this petition. Clause 10A(2) modifies the meaning of the uncontroversial 10A(1) - which simply states that "a computer program is not an invention for the purposes of this Act".  We are all very happy with 10A(1) - it effectively excludes software (computer programs) from being patentable in a way which - according to our legal advice - does not threaten NZ's compliance with TRIPS (trade-related aspects of intellectual property rights under the auspices of the World Trade Organisation or WTO).

The Patents Bill is currently standing at #2 on the Order Paper and as such will certainly be heard in the next session of Parliament, which starts in 2 days time, on Tuesday the 29th of January 2013.  We must make our message heard by our politiciants and the ministers involved.

Our Message

  1. The Patent Bill's software exclusion is fundamentally flawed, and Minister Foss knows it. The Commerce Minister and the National Party are, with the inclusion of 10A(2) as part of SOP120 to the Patents Bill, providing a very weak exclusion of software patents, for which the prior precedent for the "as such" language used in the European Patent Convention's legislation which despite the spirit being clear, still allows hundreds if not thousands of software patents to be awarded each year. In a response to a letter from one of our co-signers, the Minister admits that the language introduced in 10A(2) is weak, and will allow an unknown number of software patents to be awarded despite that being contrary to the stated purpose of the legislation. 
  2. We request the following personal assurance from Minister Foss:
    "Can the Minister give an assurance that no New Zealand business or individual will be successfully sued in a New Zealand Court for infringing a patent granted under the new Patents Bill, simply for the act of writing, distributing or using software in New Zealand?"
    If the Minister cannot provide it, why not? It is unacceptable to us that the Minister should advocate legislation that provides known circumventions to its spirit.
  3. The Patents Bill with 10A(1) but without 10A(2) would be our ideal outcome for the 3rd Reading. 10A(2) can and should be removed. It does not add any value whatsoever to the legislation. Claims by the Minister's officials (to whom the Minister defers) suggesting a concern with WIPO and/or TRIPS repercussions are lame, and at the very least debatable. Our legal advice suggests that because software is still protected by Copyright, there are no TRIPS concerns. We have reason to believe that some agents of the US government or corporate lobbyists have threatened NZ with a WIPO suit should the legislation be passed without 10A(2). We believe this is nothing more than common blackmail and represents an unnacceptable threat to our soverignty. Let them make that threat publicly and accept the fall-out - the Minister should back NZ interests in this situation rather than be intimidated US threats (likely to be empty). We will happily shine a light on the gutless perpetrator.
  4. The substantial weakening of the Patents Bill software exclusion is related to the TPPA. Despite public claims to the contrary from both Ministers Foss and Joyce over the past few years, we have ceased to accept their assurances that the weakened software patent exclusion has nothing to do with the Trans-Pacific Partnership Agreement negotiations.
  5. The Patents Bill with SOP120 will stifle the rise of NZ's Software Development Industry. The industry - in part through this petition - has made its support for an exclusion of software patents in the new Patents Bill abundantly clear: software patents are a powerful inhibitor to innovation, not an enabler. Nevertheless, our government is working against our interests, favouring NZ's waning agricultural production sector - 19th and 20th century powerhouses - over NZ's ascendant technology sector which includes software development at every level.  The decision to weaken the software patent exclusion will even affect modern agricultural methods, almost all of which will depend on many layers of innovative software. The fact that our Government seems to be willing to make pre-emptive concessions to fall into line with US Intellectual Property conventions TPPA prior to any form of agreement smacks of naivete and weak negotiating strategy. Does the minister want this blemish on his CV - along with the ire of the industry that is potentially (based on current growth trajectories) NZ's greatest hope for future prosperity?