Minister announces way forward for software patentsAs some of my colleagues have been pointing out in various forums, the proposed wording of the Patents Bill doesn't appear to allow for embedded software to be patented.
Commerce Minister Simon Power has instructed the Intellectual Property Office of New Zealand (IPONZ) to develop guidelines to allow inventions that contain embedded software to be patented.
"IPONZ will formulate draft guidelines and seek the views of interested parties,” Mr Power says.
The process will begin once the Patents Bill has passed its final stages in Parliament.
“My decision follows a meeting with the chair of the Commerce Committee where it was agreed that a further amendment to the bill is neither necessary nor desirable.”
When the Commerce Committee reported the bill back to Parliament in March it recommended that computer programmes not be a patentable invention.
During its consideration of the bill, the committee received many submissions opposing the granting of patents for computer programs on the grounds it would stifle innovation and restrict competition.
It also considered that companies investing in inventions involving “embedded” computer programs should be able to obtain patent protection for these inventions.
The committee and the Minister accept this position.
IPONZ is the government agency responsible for the granting and registration of intellectual property rights. It is a business unit of the Ministry of Economic Development
And yet Simon Power says guidelines will be formulated by IPONZ to allow for embedded software to be patented.
Does anyone else see a problem with that? The last time I checked the constitutional legal arrangements of this country the rule of Parliament was still supreme*. A government body can't override legislation.
So if the new Patents Act (once in force) says that no patents are allowed for any software, what right will IPONZ have to decide otherwise? Any allowance IPONZ makes for embedded software will be at risk of being overturned by the courts.
This is a complete cop-out by a minister too scared or lazy (I'm not sure which) to make a decision either way. It will only increase the level of uncertainty, and will most likely lead to litigation on this issue. And for all the anti-patent-attorney folk out there who have been fighting so hard on this issue, guess who'll win out of that?
* Okay, it's been a while since I was at law school, but I'm sure I'd have heard something about the entire basis of our constitutional framework being changed in favour of government departments and bodies.
Reminiscent of the continued "suspension" of section 92A, once it became obvious even to National that the provision was a dog, and the TCF were never going to be able to set appropriate guidelines.
ReplyDeleteThere were rumbling back then of the constitutionality of the executive choosing the "suspend" the implementation of a law passed by Parliament.