​How New Zealand's software patent ban can survive the TPP

Officials give assurances there will be no changes to software patents, ISP liability and parallel importation.
Written by Rob O'Neill, Contributor

While the latest text of the Trans Pacific Partnership Agreement remains under wraps, New Zealand's negotiators insist there will be no change to the country's stance on software patents or on parallel importing if the deal is sealed.

The Institute of IT Professionals received a briefing in response to its open letter to trade minister Tim Groser and the answers were reassuring.

A blog post by the IITP does not explain the reasons why no law change will be required, but in relation to software patents it could be a result of the peculiar and clever way New Zealand went about getting rid of them in the first place.

The new Patents Act, passed in 2013 with resounding support in Parliament in a vote of 117 to 4, didn't say software couldn't be patented - it said software was not an invention. It's a subtle but important distinction.

That approach appears to be how the law avoided falling foul of existing international treaties such as the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights, also known as TRIPS.

It also helps the local law comply with the TPP, at least the latest leaked draft of the TPP.

Two leaks of the TPP's intellectual property chapter reveal how much the text has changed and how those changes should allow the Patents Act to survive unchanged.

The text went from being highly prescriptive in a 2013 leak, detailing areas where patent protection was required, including for software, to much more generalised language in a May 2015 leak (full chapter here, patent provisions here [PDF]) that only specifies patent protection must be available for "inventions".

Those changes appear to provide wriggle room for New Zealand's peculiar patents regime.

Other potentially important assurances were received by the IITP. Among them, the negotiators indicated parallel importation would not be affected and nor would ISP liability for copyright infringement.

ISPs will also not be required to cut internet service to infringing customers.

Further analysis of the May 11 leak is here.

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