Publication of draft computer program patent guidelines “premature”
The Intellectual Property Office of New Zealand (IPONZ) decision to publish draft guidelines for patent applications involving computer programs is premature, the New Zealand Law Society says.
IPONZ published Draft Guidelines for the Examination of Patent Applications Involving Computer Programs after Parliament’s Commerce select committee recommended development of the guidelines in its report on the Patents Bill. The Committee noted that while computer programs generally should not be patentable, inventions involving “embedded” computer programs should continue to be patentable.
In its comments, the Law Society says it is premature to publish draft guidelines for interpreting a clause in a Bill that has not yet had its second reading.
“It is odd for a select committee to report a Bill back to Parliament, while also delegating – to the government agency that is to administer the new Act – the task of determining what a provision in the Bill means,” the Law Society says.
“It is up to Parliament to enact its intention through legislation.”
The Law Society also says it is not clear what will happen at the end of the submission process. The Ministry of Economic Development says the consultation purpose is to ensure IPONZ gives proper effect to the provisions of the legislation, taking into account the intentions of the Commerce Select Committee “in a manner that is likely to find support from a New Zealand court.”
“However, section 5 of the Interpretation Act 1999 requires a court to determine the meaning of an Act by its text and in the light of its purpose, if necessary by reference to the ‘indications provided in the enactment’, the Society says.
“Draft guidelines issued by a government agency on the interpretation of an Act passed by Parliament are not indications of the kind a court usually has regard to. The Draft Guidelines on a provision of a Bill that has not had its second reading are even less so.”
The Law Society’s comments state that the issuing of Draft Guidelines at this stage simply adds more uncertainty to an uncertain provision. It suggests some possible solutions, and concludes that the Draft Guidelines should not proceed until there is further guidance available from Parliament.