New Zealand drops ability to patent software

New Zealand drops ability to patent software

Summary: A supplementary order paper from the NZ Commerce Ministry confirms that software will not be patentable in New Zealand if the invention is solely software.

TOPICS: New Zealand, Patents

New Zealand's Commerce Minister Craig Foss has clarified the New Zealand government's position on software patenting as a concept that will not exist within the country.

Foss today released a supplementary order paper (SOP) to the Patents Bill, which is currently before New Zealand's parliament, that clarified the "as such" wording used in a previous SOP.

The additional clauses use an example of a washing machine that is upgraded with new software to create a better method of washing clothes on existing washing machines as an instance of an invention that is deemed patentable.

"The actual contribution does not lie solely in it being a computer program," says the SOP. "Accordingly, the claim involves an invention that may be patented (namely, the washing machine when using the new method of washing clothes)."

Conversely, a program that autofills legal documents for users is not deemed patentable because the only novel aspect of the invention is the program itself.

"The Commissioner considers that the actual contribution of the claim lies solely in it being a computer program. The mere execution of a method within a computer does not allow the method to be patented. Accordingly, the process is not an invention for the purposes of the Act."

"I would like to thank the NZ software and IT sector for their engagement over the last few months. I'm confident we've reached a solution where we can continue to protect genuine inventions, and encourage Kiwi businesses to export and grow." said Foss in a statement.

New Zealand's largest IT representative body, the Institute of IT Professionals, welcomed the move, with its chief executive Paul Matthews saying that patent system does not work for software.

"On balance, it is in New Zealand's best interests for software to continue to be covered through the provisions of Copyright, in the same way movies and books are, rather than through the patent system, which has significant problems," Matthews said.

"We believe it's near impossible for software to be developed without breaching some of the hundreds of thousands of software patents awarded around the world, often for 'obvious' work.

"Thus, many software companies in New Zealand, creating outstanding and innovative software, live with a constant risk that their entire business could be threatened due to litigious action by a patent holder."

Clare Curran, the New Zealand Labour opposition IT spokesperson, proclaimed the move as a victory for the software industry that is worth 11 percent of New Zealand's GDP.

"Software development is a key part of our economic future, and this law change will allow our innovators to get on with the job without the fear of prohibitive and stifling law suits being imposed by bigger multinational companies," said Curran.

Topics: New Zealand, Patents


Chris started his journalistic adventure in 2006 as the Editor of Builder AU after originally joining CBS as a programmer. After a Canadian sojourn, he returned in 2011 as the Editor of TechRepublic Australia, and is now the Australian Editor of ZDNet.

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  • Great ... so to fix a problem make it 10 times worst

    So now when a startup company develops an innovative software product, the big companies can just look at what was done, clone everything and completely obliterate the startup's chances to make $$$.

    Yeah ... lets just remove patents in its full instead of FIXING the actual problem of approving garbage patents with nothing but vague generic descriptions.
    • Tend to agree with you!

      Although it would be nice it that happened world wide, one country going it alone is most like to drive business else where!
      • The reverse

        Actually, what's interesting is that it's actually driving north american companies TO New Zealand. This has already started to happen (due to an earlier announcement).

        The fact is, the benefit of a small number of companies obtaining a software patent is far outweighed by the significant risk of patent infringement lawsuits on innovators - as a great many tech companies have found out.
    • Look at the US

      All you need do is look at how software patents have turned the US system into a legal basket case to see why the NZ move is a good one. Patents tend to be used against the start-ups to stop them doing the innovative stuff in the first place. Only those with a huge armoury of patents benefit from the system.

      Have you ever tried to write software while checking a few hundred thousand patents to ensure you haven't inadvertently breached one? No one can. The only protection you have is the Mutually Assured Destruction that comes from two parties having an arsenal of patents. What happens if only one party has that arsenal?
      • Re: while checking a few hundred thousand patents

        What's worse, is that if you ask a lawyer, they would advise NOT to even try to check ANY patents. That's because if you are later found to infringe, and it turns out you knew about the patent (and had decided you weren't infringing it), then you become liable for triple damages.
        • Absolutely!

          It is a crazy system and you are correct - the best way to survive is to ignore it. The system has deteriorated so much even Congress has been forced to sit up and take notice. I watched a congressional committee hearing where a number of companies outlined their experience with the US software patent system. It was frightening with the average defence costing $3M even if you win because the claimant had no case. Patent trolls are running a nice little racketeering business making garbage patent claims and extorting licence fees for patents that aren't infringed and shouldn't exist in the first place.
    • But...

      from my reading of the above, the software is subject to copyright. So how can a big company steal it?
    • Nope - that's why we have Copyright

      No, no, no. This isn't saying there will now be no intellectual property. Copyright is the most appropriate form of protection and would prevent what you are suggesting.
      • How much protection is needed?

        If software can be patented, it would be the only product covered by both copyright and patents. Books, music, and movies are covered by copyright only.
    • Utter Garbage

      With software patents start-up companies don't even get to start up. It's as ludicrous as publishers trying to patent the alphabet so they have complete control over the book market.
      Alan Smithie

    I thought this clarification had been stymied by IP-maximalist lobby groups. I'm gratified, and faintly incredulous, that it has finally come to pass.
  • So...

    Does this also cover things like swipe to unlock? After all, that's just a software method...
    If that's the case I could see a huge investment in NZ from companies that want to avoid being sued for that kind of thing.
  • I'm not sure that means much

    Theoretically, pure software inventions can't be patented in the U.S. either, which is why software patent applications routinely describe the "invention" as a machine to do such and such.

    The devil is in the details. The safe approach would be to limit patents to hardware and industrial processes.
    John L. Ries
    • Aerotel test

      You're quite right, which is why New Zealand are enshrining most of the UK Aerotel Test in legislation. this forces patent examiners to look at what the actual substance of the claim and contribution is, rather than its form or contribution alleged.
  • This is great news for FOSS

    That's the Free Open Source Software (not Craig Foss the NZ Minister)