Patents Bill emerges from Select Committee
On 30 March 2010, the Commerce Select Committee reported back on the Patents Bill. A number of changes were made including one surprise.
(a) Exclusions to patentability
The Bill will exclude from patentability:
- Methods of medical treatment of human beings.
- Processes for cloning human beings or for modifying the germ line genetic identity of human beings.
- An invention that involves the use of human embryos for industrial or commercial purposes.
However a surprising development was the Select Committee’s decision to exclude computer software from being patentable. The open source software movement appears to have had a strong influence on the Select Committee’s thinking. The Committee reached the conclusion “that computer software should be excluded from patent protection as software patents can stifle innovation and competition and can be granted for trivial or existing techniques”. One of the difficulties such an exclusion created was what to do about embedded software. The Select Committee has allowed such embedded software to be patentable but has not provided a distinction between allowable embedded software and non-allowable other types of software.
The exclusions from patentability mean on the Bill coming into force that there will be a divergence between Australia and New Zealand. In Australia both methods of medical treatment and computer software are patentable subject matter. New Zealand appears to be in favour of the EU approach in both these areas.
The possibility exists, despite the Select Committee report, that the Government could still introduce a Supplementary Order Paper to overturn the change in relation to software.
(b) Pre-grant opposition
The introductory version of the Bill had done away with pre-grant opposition - a move that was unpopular with patent attorneys and patent lawyers. The Select Committee has now reinstated such oppositions.
(c) Re-examination of accepted patents
The Select Committee is allowing re-examination of accepted patents.