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The Bill to enact this legislation is currently before a Parliamentary Select Committee. This legislation is intended to completely replace the existing Act and on that basis, the Committee is considering input from a wide variety of sources.
Mr Ken Moon (a legal practitioner in the intellectual property field), who raised the possibility of the removal of software patents at a recent conference noted that "The Bill will give us a complete new Patents Act and thus the Committee heard submissions on a wide range of issues. However many people in the Open Source community who seem to have missed the 2004 proceedings submitted that software should be excluded from patentable subject matter."
In the interests of full disclosure, Moon continues "I represented Fisher & Paykel Appliances before the Select Committee arguing for the status quo because F&P wanted to retain the ability to patent any inventive software they devised for their embedded systems in washing machines, dishwashers etc. I gained the clear impression that the chair of the Committee, Lianne Dalziel, favoured excluding at least some types of software from being patentable."
It is intriguing that the Committee's chair comes from the Opposition party, in fact a Minister in the previous Government; however this may cause the idea to die unless she can convince the majority of members from the Government on the committee to agree.
Currently the views of the Minister are unknown, however as Moon comments, "No doubt the Minister responsible will convey that to National's three members on the Committee in due course.
"Anyway it is possible all software or perhaps some software inventions will be excluded from patentable subject matter. Lord Hoffmann was commenting on the former possibility." Moon was of course referring to the interchange described in the previous article on the topic.
Addressing his perception of deliberate confusion of the difference between software and business methods by some interested parties, Moon observed that, "there are many people who are muddying the waters by calling patents for business methods 'software patents.' The arguments for each are separate and different. Our High Court, like Australia, has shown a willingness to invalidate business method patents under the existing law."
Finally, iTWire asked Moon how this might affect New Zealand's standing in the international legal community. "If New Zealand was even more restrictive than Europe in allowing patents for software inventions then I think we would have a problem internationally. The Europeans get a bit of criticism for arguably not complying fully with the WTO treaty which requires signatories to grant patents for all technologies. For New Zealand I am sure the United States for one would not be so respectful. And of course New Zealand hopes for a Free Trade Agreement with the US."
