New Zealand drops ability to patent software

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.

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.