[A2k] no software patents in New Zealand

"Gérald Sédrati-Dinet (Gibus)" gibus at april.org
Fri Aug 30 14:02:35 PDT 2013

Thanks Susan and Paul for your clarifications.

Indeed, the clause:

 "A claim in a patent or an application relates to a computer program as
such if the actual contribution made by the alleged invention lies
solely in it being a computer program"

 can limit the "as such" loophole, just like the Aerotel test, or what
the European Parliament voted in 2003 (but the whole law was rejected 2
years later) by stating that to be considered as an invention, in the
sense of the patent law, the application has to involve a new and
inventive teaching about cause-effect relations in the use of
controllable forces of nature.

But what we've learned from European (or even US) experience, is there
is no legal wording that can draw a 100% clear line between patentable
and unpatentable innovations. Everything lies in the interpretation
finally adopted by courts competent for patent enforcement/invalidation.

Never ever give competence to an isolated specialized patent court,
because you can be sure that it will interpret your shiny legal wording
in a sense that will favor the patent microcosm.

For what I've read, the NZ bill has been careful to not only propose
some legal provisions, but also to point out the spirit of theses legal
provisions, with also some examples, etc. I think this is one of the
greatest advantage of this bill because it shows to interpreting courts
what was the will of the legislator.

Le 29/08/2013 12:24, Paul Matthews (IITP) a écrit :
> Hi all,
> Definitely happy to answer any queries on this.
> In short, the potentially troublesome "as such" wording is still in the
> legislation, however there are now additional clauses added that make it
> clear that this is to be interpreted in as narrow a manner as possible.
> The problem with the wording in other jurisdictions (such as the EU) has
> been the court's interpretation. In the absence of any elaboration,
> patent lawyers have successfully argued (over time) for a broader and
> broader interpretation until they reached a point where most software
> patents are patentable. If this had remained on it's own, it's likely we
> would have inherited European jurisprudence and ended up in the same boat.
> The UK courts established what's known as the Aerotel Test for software
> patents that basically made it clear that software-implemented
> "inventions" weren't considered inventions if the inventive step was
> solely in software. Or to put it another way, a patent for something
> wasn't excluded because it included software, unless the claimed
> inventive step was just in the software (with other parts to stop claims
> that a changed memory configuration, for instance, was the non-software
> part). While the UK has started to move away from that (they share
> patent rules with the EU, although often differ in interpretation), by
> enshrining the test in law in NZ, we're ensuring that the narrowest
> possible interpretation is taken.
> It's actually quite innovative how the law is worded. It gets around the
> TRIPS requirement that all inventions in all fields of technology has to
> be patentable by simply stating that computer programs are not
> inventions. If it's not an invention it's not patentable, irrespective
> of TRIPS.
> Hopefully that hasn't all muddied the waters further! The short version
> is that software is not patentable, but embedded systems (where the
> effect is outside the computer and the software is incidental) is
> patentable. But the law is very specific that the loop holes that have
> been used in other jurisdictions won't fly.
> Regards,
> *Paul Matthews* BSc, MIITP ITCP
> Chief Executive | *Institute of IT Professionals* NZ
> *P* +64 4 473 1043 <tel:+64%204%20473%201043> * M* 021 705 212
> <tel:021%20705%20212> * W* www.iitp.org.nz
> <http://www.iitp.org.nz/> * T* @nzPaulM <http://twitter.com/nzPaulM>
> *A:* Level 24, Grand Plimmer Tower, Gilmer Tce, Wellington NZ
> (Sent via iPad)
> On 29/08/2013, at 1:16 PM, "Susan Chalmers" <susan at internetnz.net.nz
> <mailto:susan at internetnz.net.nz>> wrote:
>> Dear Gérald, everyone,
>> Many thanks for your email.
>> "As such" does continue to reside in the language, but it is worth
>> reading the provision in whole. 
>> The relevant text is in this Supplementary Order
>> Paper: http://www.legislation.govt.nz/sop/government/2013/0237/latest/whole.html.
>> The SOP revised the version of the Bill that you linked to. The text
>> does provide the "Fisher & Paykel" exception as an illustration. 
>> While this language does not go as far towards wholesale exemption as
>> was originally proposed, the native IT industry is very pleased with
>> it on the balance because it effectively removes software from
>> patentable subject matter in New Zealand.
>> I've copied in Paul Matthews, the Chief Executive of New Zealand's
>> Institute for IT Professionals. Paul has been a champion in this
>> endeavour and I imagine he would be happy to provide you and the list
>> with further detail.
>> A press release from IITP on the subject can be found
>> here: http://www.iitp.org.nz/news/archives/4922-IT_Professionals_welcome_passing_of_Patents_Bill
>> Sincere regards,
>> Susan
>> On Thu, Aug 29, 2013 at 3:12 AM, "Gérald Sédrati-Dinet (Gibus)"
>> <gibus at april.org <mailto:gibus at april.org>> wrote:
>>     Dear Susan and all,
>>     I've read today some press statements
>>     (http://www.zdnet.com/new-zealand-bans-software-patents-7000019955/)
>>     that NZ has finally banned software patents.
>>     Reading the patent bill
>>     <http://www.legislation.govt.nz/bill/government/2008/0235/latest/whole.html#DLM1419230>,
>>     computer programs are simply excluded from patentability, without any
>>     loopholes as the famous "as such" clause.
>>     So this is really big news!
>>     Can you confirm that the bill has been adopted with the text
>>     linked above?
>>     --
>>     Gérald Sédrati-Dinet
>>     http://pascontent.sedrati-dinet.net     http://www.april.org
>>     http://www.unitary-patent.eu            http://laquadrature.net
>> -- 
>> ---
>> Susan Chalmers
>> Policy Lead
>> InternetNZ
>> PO Box 11-881
>> Manners St
>> Wellington 6142
>> +64 4 495 2339
>> susan at internetnz.net.nz <mailto:susan at internetnz.net.nz>

Gérald Sédrati-Dinet
http://pascontent.sedrati-dinet.net     http://www.april.org
http://www.unitary-patent.eu            http://laquadrature.net

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