By guest blogger Doug Calhoun
The Patents Bill has had a tortuous ride through Parliament - to say the least. Introduced in2008, it was reviewed by a select committee in 2009 and reported back in March 2010. In September2012, the bill finally got its second
Since then the committee stage (when the “as such” wording would be voted on) has beendelayed.
On 9 May the government tabled
The main change proposed in SOP 237 was to rewrite the September 2012 exclusion in a new Clause10A. The new clause features 4 sub-clauses that seek to explain how the exclusion is to beinterpreted – but the substantive exclusion is still “a computer program as such.”
So it came as a bit of a surprise to read Clare Curran’s
But hey, this is politics. And Clare Curran has borrowed a
Ms Curran’s victory announcement included this slight revision of history:
“Three years ago, the Commerce Select Committee undertook a much needed review ofNew Zealand’s patent laws which hadn’t been looked at since 1953. A substantial review whichconsidered and recommended modernisation to an important plank of our intellectual property regimeranging from inventions to medicines, traditional knowledge and indigenous plants and animals tosoftware programs.”
The policy development had been conducted in a largely non-partisan way through to September2012, when computer software became a political football and the rest of the Patents Bill and itspurpose became largely ignored. The injection of partisan politics into patent policy at this stageis hardly a recipe for success for New Zealand.
According to its explanatory note, the wording of SOP 237 is intended to be
“more consistent with English precedent.”
In the most recent (3 May 2013) UK appeal decision
The lower courtdecision was that this claimed an (ineligible) computer program as such – the appeal court held itdid not. The invention claimed was patent eligible.
Lord Justice Lewison, in paragraphs 140 to 144, had a bit of a moan:
“Thisappeal requires us, once again, to venture into the minefield of the exclusion from patentability ofcomputer programs ‘as such’”
SOP 237 sets out to put into law in New Zealand, a New Zealand “gloss” on the gloss that theyhave been disagreeing about in the English courts and the European Patent Office since 1978.
Clare Curran paints
“the bloated patent attorney sector”
What her “triumph” has unwittingly done is to open up a fertile new field for the bloatedpatent attorney sector to venture into over the next few years. And among the most likelyinnovations will be in defining software-implemented inventions.
Clare Curran might also want to have a look in her own (Dunedin) back yard. A successfulUniversity of Otago spinoff company there is Pacific Edge. That company boasts on its website thatit underpins its products with a strong portfolio of
One of its New Zealand patents, NZ 544432, claims a method for determining the prognosis ofcolorectal cancer in a patient using analysis software.
Under the new clause 10A and under clause 15 of the Patents Bill such claims might no longer beeligible for patents because they might claim a computer program per se or else because they mightclaim a method of diagnosis, or both.
The most valuable asset that Pacific Edge has is its intellectual property. The Patents Billcasts doubt on the patent eligibility of innovative technologies that Pacific Edge is seeking tocommercialise.
Is this really going to promote investment in innovation?