Proposal for Alternative Wording for the Qualification around the Exclusion of Computer-Related Inventions from Patentability

Labour MP Clare Curran has proposed a last minute change to the limitation of the extent to which software inventions may be excluded from patentability. Ms Curran objects that the qualification by Craig Foss (Minister of Commerce) that only inventions that relate to a computer program as such should be excluded from patent protection is ambiguous. While this wording may seem a little convoluted, it has been adopted in other jurisdictions and case law exists clarifying what it means. In broad terms, an invention which is implemented using software is generally patentable and mere schemes, algorithms or data presentation or manipulation generally are not.

Ms Curran proposes amending the qualification such that the broad exclusion to the patentability of software does not extend to inventions that make use of an embedded computer program. Without any definition as to what constitutes embedded software, it is difficult to see how such a change would provide for improved certainty for patent applicants or those against patent protection. She perhaps mistakenly concedes this by commenting that her proposed wording leaves “the boundaries of embedded software to be determined by the Government on a case-by-case basis as appropriate”. This hardly seems desirable, requiring patentees and opponents to go through costly litigation to determine their position.

That said, with the Government keen to pass the Bill as soon as possible and Ms Curran 's comment that Labour will vote against it at the third reading if their amendment is not accepted, Labour appear to be in a strong position, particularly with the Green party having taken a similar stance as Labour during progression of the Bill.