Analysis of Wikileaks TPPA IP chapter regarding Software Patents

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I've read Article QQ.E.1 {Patentable Subject matter} to determine if there are any clear implications for New Zealand's ban on software patents. Remember that this is not necessarily the final text of the agreement, so we are still only guessing, really.

The Article contains 4 paragraphs.

The first paragraph states that all participating countries shall make patents available for "any invention, whether product or process, in all fields of technology". But this is subject to the contents of paragraphs 3 and 4.

Para 2 says that patents are available for any invention claiming one or more of the following: "new uses of a known product, new methods of using a known product, or new processes of using a known product."

This, by my reading, means that, for example, transferring a paper-based process to a computer would arguably fulfil at least one of those conditions.

Para 3 provides exceptions to the patentable inventions covered by the blanket statement in para 1. They include specific things to " protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to nature or the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law."

Para 3 also lists: "diagnostic, therapeutic, and surgical methods for the treatment of humans or animals; animals other than microorganisms; and essentially biological processes for the production of plants or animals, other than non-biological and microbiological processes."

Finally, para 4 allows exclusion of plants other than microorganisms (i.e. microorganisms are patentable - not sure where the line is drawn between plants and microorganisms).

At present, the relevant section of our Patent Act of 2013  states that "(1) A computer program is not an invention and not a manner of manufacture for the purposes of this Act."

It's not clear whether this contravenes the statement in Para 1 - if the courts find that computer software is in fact an invention, based on that blanket statement, then there're problems.

Also, this does not preclude the possibility that elsewhere in the TPPA text there could be language which - for the purposes of "harmonising" IP provisions across the TPPA signatories - that a patent granted in any jurisdiction applies in any other jurisdiction... We don't know if that's in the text, or whatever is in the text could be interpreted by our legislators as a requirement of compliance.

Ultimately, the lack of text is unacceptable and I feel strongly that all of us need to make that clear at every possible opportunity.

Update 2015-10-11: And upon further consideration of this leaked text, it occurs to me that it could be even worse than I thought.

dave's picture

Hi Terry, thanks for your comment. I disagree with your statement, however, that computer software can be an invention. By extension, so too can be a piece of music, a book, a script (in the theatrical sense), etc. and yet these cannot be patented. A line must be drawn somewhere between the common pool of ideas of which can be expressed (and are covered by copyright), and which, in our opinion, should cover software source code, vs. thing which can be "invented" which we strongly feel should not include source code.

Clearly computer software can be an invention, if you invent it. Our current law merely states that, for the purposes of the Patent Act 2013, it is not an invention. For any other acts, I would expect it to be able to be considered an invention.