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Thursday, 1 April 2010

NZ patent reform proposals: good news for open sourcers, generics

Last year the IPKat reported that New Zealand's keenly-awaited Patents Bill had been referred to the Commerce Select Committee for public submissions. He now learns that the Select Committee released its report on the Bill on 30 March. The Committee recommends some amendments before the Bill becomes law: you can see the report, replete with a marked-up version of the Bill showing the proposed amendments, here.


Right: Lambs to the slaughter? Investors in NZ software, pharma and agrochemical sectors may ask whether it's all worthwhile ...

While computer programs are currently patentable in New Zealand if they produce a commercially useful effect, the Committee -- accepting submissions from open source software supporters -- recommends that the words "a computer program is not a patentable invention" be added. Acknowledging its awareness of New Zealand companies which have invested in a significant number of software-related inventions involving embedded software, the report states:
"We sought advice on the approach taken in other jurisdictions such as the United Kingdom and the United States, and whether legislation that would enable 'embedded software' to be patentable might be practicable. After careful consideration we concluded that developing a clear and definitive distinction between embedded and other types of software is not a simple matter; and that, for the sake of clarity, a simple approach would be best. We received advice that our recommendation to include computer programs among the inventions that may not be patented would be unlikely to prevent the granting of patents for inventions involving embedded software. We recommend that the Intellectual Property Office of New Zealand develop guidelines for inventions containing embedded software."
How might the New Zealand Intellectual Property Office handle the challenge of developing guidelines for a clear and definitive distinction between embedded and other types of software? The IPKat awaits the outcome with curiosity.

The report is silent regarding patent term extension where commercial exploitation of a patented product, such as a pharmaceutical or agrochemical, is delayed due to the need to obtain regulatory approval. This omission is particularly disappointing for patentees as the Bill contains 'spring-boarding' provisions in clause 136 that grant an exemption from infringement for an act done for experimental purposes and in clause 138 for the development and submission of information required to obtain regulatory approval.

The amendments recommended by the Committee will be debated in Parliament before a decision is made whether to introduce them into the Patents Bill.

The IPKat thanks Adrian Evans (Henry Hughes Patent & Trade Mark Attorneys) for this information.

2 comments:

zoobab said...

Software is always "embedded".

Software patent proponents use this trick to make software patentable, but in reality, you can always analyse the machine to know if the feature is done in hardware or in software.

Frank said...

Hi there Jeremy, the guidelines that were drafted don't even have the word "embedded" in them. Here they are:
http://www.med.govt.nz/templates/MultipageDocumentTOC____45568.aspx

At a glance it seems UK law was the answer, but Olswang don't think so. More like the UK law was the question, and the answer was "who knows"?
http://www.olswang.com/newsarticle.asp?sid=115&aid=3396&de=&mid=102

Before long submissions on these draft guidelines could be expected to appear on the med.govt.nz website. I wonder how they will turn out.

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