References

These are annotated links to other resources related to the New Zealand software patent issue.

Why the current clause 10A(2) is the Wrong Solution

The current clause 10A(2) of the Patents Bill uses the "as such" terminology, similar to the European Patent Convention (EPC) approach. So what's wrong with that? In short, it introduces ambiguities that undermine the exclusion of software patents in clause 10A(1).

From our local legal experts

Guy Burgess has provided a compelling case for the "as such" working being far more problematic than the wording we have proposed. He also points out that Andrew Brown QC, although he fails to understand many issues relevant to this legislation and petition, similarly doubts the value of the "as such" wording. Two other local legal experts have weighed in on the issue, also finding that the "as such" wording is likely to allow software patents despite the MED's claims that the wording is the best way to achieve the Select Committee's recommendation of banning them.

From the European Union

For further references on the ambiguities introduced by "as such", see the related Wikipedia entry, a set of instructions on how to circumvent the software patent exclusion, and a report in which the German courts declare that all software is patentable under the EPC legislation. The current clause 10A(2) may replicate these effects in New Zealand.

Verdict from lawyers across the ditch

Here's what the Institute of Patent & Trade Mark Attorneys of Australia said in their 29 June 2010 submission to the NZ Minister about the problems of the EPC approach:

[The EPC approach] will still introduce uncertainty and confusion as to the patentability of computer related inventions... The approach in Europe has also led to considerable uncertainty and criticism amongst European industry, the European Patent Office and the Courts... the approach has been often criticised as being inconsistent and contradictory to the EPC itself. For example, the UK Court of Appeal has said "The decisions of the EPO Boards of Appeal are mutually contradictory" and its approach in two decisions "is simply not intellectually honest"... It is also not clear whether New Zealand could or would rely on the European jurisprudence. We would be concerned that if New Zealand adopted wording comparable to that of the EPC, that there is is no such body of precedents in New Zealand that would guide an understanding of use of the terminology "as such"... In our view, adopting the EPC approach would create a significant degree of uncertainty as to how the section is to apply and which, in any event, is inherent in the EPO approach.
...
Adopting an approach comparable to the EPC and UK Patents Act is also likely to lead to unpredictability, as an interpretation of the "as such" clause by the European Patents Boards of Appeal has that computer programs are only patentable if they produce a "further technical effect" so as to render the claim allowable under article 52 of the EPC... The EPO approach has often been criticised in Europe as giving rise to unpredictability in that jurisdiction. Considerable costs have been incurred in dealing with and attempting to avoid the exclusion that was imposed in 1977.

So according to the Australian Patent Attorneys themselves, New Zealand's proposal will be to adopt an approach that is uncertain, confusing, inconsistent, contradictory, unpredictable, and costly.

Why do this, when there is a sensible alternative to clause 10A(2) that avoids these problems?

What about inventions containing embedded software?

The replacement wording requested for clause 10A(2) ensures that inventions containing embedded software (such as washing machines) are not inadvertently excluded. This is consistent with the request made by Fisher & Paykel Appliances to Commerce Minister Craig Foss as recently as 5 April 2012. Fisher & Paykel said that the Bill:

... should be amended to include an express "carve out" to allow patents for "embedded systems", such as programmed controllers for washing machines, dishwashers, refrigerators and other whiteware.

We agree, and that is what the replacement wording for clause 10A(2) achieves.

What about our obligations under TRIPS?

The replacement wording requested for clause 10A(2) does not conflict with New Zealand's obligations under TRIPS.

What's the harm in Software Patents anyway?

Plenty has been written about this one. Some compelling academic research indicates that US software patent regime has cost the world half a trillion dollars since 1990.

This is why the NZOSS thinks that software patents are a very bad idea, via the Fair Deal site.

Indigenous kiwi software developer representative group, NZRise, was formed largely due to fear that overseas interests - especially via the top secret Trans-pacific Partnership Agreement (TPPA) negotitations - would try to reverse the Government's proposed software patent exclusion... as they appear to have done. Here is NZRise's position on the TPPA and Software Patents.

If patents are banned, how can I protect my software?

You can protect it the same way the vast majority of software developers in New Zealand do now: with copyright-based licenses and contractual agreements. Guy Burgess wrote about this for Computerworld in 2010, shortly after the Select Committee's recommendation was announced.

Excellent Reference Sites on Software Patents

Ciarán O'Riordan, and these sites in which he has a hand: EndSoftwarePatents.org and en.swpat.org are invaluable resources! In particular, Ciarán has maintained this vital reference page which quite rightly stirred up a bit of controversy.