Imperator Fish: The Software Patent Exclusion Shambles

Tom Pullar-Strecker reports in Stuff:

The Government may need to go back to the drawing board over the way software patents will be treated under its proposed Patents Bill, after guidelines drawn up by officials to safeguard hi-tech manufacturers were slated by legal experts.

Parliamentarians delighted the open-source software movement and troubled large corporates such as Microsoft last year by including a clause in the Patents Bill that says software is not a patentable invention.

Microsoft New Zealand legal counsel Waldo Kuipers hoped dissatisfaction with the separate guidelines, which are designed to accompany the legislation and address the specific issue of embedded software, would open the door to a fundamental rethink.

Putting aside the question as to whether or not software ought to be patentable (let's not even go there, people!), the whole rationale for the guidelines is deeply flawed. The intention is for the guidelines to clarify what can be patented and what can't. But the wording of the draft legislation (which the guidelines will be subject to) seems to provide for a blanket ban of all software patents - for embedded and non-embedded software. This is a basic statutory interpretation issue. The guidelines can say what they like, but they can't override legislation.

Patent attorneys, being reasonable sorts (of course!), suggested that the legislation should be amended to bring it more into line with practice in other parts of the world that don't allow software patents, such as in Europe. For reasons that escape me those suggestions were not adopted.

The whole process has been fraught with problems and they should probably just go back to the drawing board and look at the issue again. During select committee hearings a number of organisations now opposed to the software patent exclusion failed to make submissions, because they did not expect the issue to be raised at all. So many of these companies feel as if the select committee heard only one side of the story on software patentability. Since the matter is the subject of such debate and recrimination it might be prudent for the government to open the matter up again for debate.

Source: http://www.imperatorfish.com/2011/06/software-patent-exclusion-shambles.html

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