New Zealand Prohibits Software Patents

On August 28, 2013, New Zealand passed the Patents Bill, a new patent law that prohibits the patenting of computer software per se. The law was first drafted in 2008 and took 5 years to pass. The purpose of the Patents Bill is to “update the New Zealand patent regime to ensure that it continues to provide an appropriate balance between providing adequate incentives for innovation and technology transfer while ensuring that the interests of the public and the interests of Maori in their traditional knowledge are protected”. The Patents Bill specifically states that “a computer program is not an invention”. The Patents Bill also clarifies that this occurs when the actual contribution made by the alleged invention lies solely in it being a computer program. The Patents Bill also indicates that “[t]he mere execution of a method within a computer does not allow the method to be patented”. Thus the patenting of computer programs per se are prohibited. However, the Patents Bill indicates that a computer-implemented method may be patentable if the computer program is not the actual contribution. In an example provided in the Patents Bill, a better method of washing clothes when using an existing washing machine that is implemented through a computer program on a computer chip inserted into the washing machine may be patentable. According to the Patents Bill, “the actual contribution is a new and improved way of operating a washing machine that gets clothes cleaner and uses less electricity (rather than in the computer program per se). The computer program is only the way in which that new method, with its resulting contribution, is implemented.” Thus, it appears that a machine that relies on a computer for its operation may be patentable. However, computer-implemented methods which lack physicality are also prohibited. Section 10A(4) of the Patents Bill specifies that the assessment of the actual contribution made by the alleged invention must be conducted by considering the following:

1. the substance of the claim (rather than its form and the contribution alleged by the applicant) and the actual contribution it makes:
2. what problem or other issue is to be solved or addressed:
3. how the relevant product or process solves or addresses the problem or other issue:
4. the advantages or benefits of solving or addressing the problem or other issue in that manner:
5. any other matters the Commissioner or the court thinks relevant.

For a summary from the New Zealand Intellectual Property Office, visit: http://www.iponz.govt.nz/cms/iponz/latest-news/patents-bill For further information on the Patents Bill from the New Zealand Parliament, see: http://tinyurl.com/ngqrazx Summary by: Lauren Lodenquai