29 August 2013

Software Remains Patentable in New Zealand

Image: Kiwi Sign by Mrs. Gemstone on Flickr
Kiwi Sign

Yesterday’s passage of New Zealand’s new Patents Acts sparked a fire of media headlines reading like „New Zealand bans software patents“ (here, here and here).

While I hate being the messenger of bad news, I think I should clarify the issue at least for the readers of this blog, since the information above is simply incorrect, if not misleading.

The truth is that software or computer programs, as the kiwi’s patents law refers to it, remains patentable.

According to this source, the all-dominant and newly introduced Article 10a reads as follows:

(1) A computer program is not an invention and not a manner of manufacture for the purposes of this Act.
(2) Subsection (1) prevents anything from being an invention or a manner of manufacture for the purposes of this Act only to the extent that a claim in a patent or an application relates to a computer program as such.

(3) A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.

When reading this language, anyone familiar with the European Patent Convention will commemorate the text of its article 52 stating that

(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.
(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;
(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
(d) presentations of information.
(3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject‑matter or activities as such.

While it is obvious that New Zealand has elected to adopt the European „as such“ exclusion, one might ask what impact this could have on the patentability of computer programs Down Under?

This blogger is of the humble opinion that New Zealand’s judicature could follow the view of the European Patent Office (EPO), pursuant to which claims for an invention cannot be excluded for being a „program for a computer as such“, if they contain a technical or physical feature such as a computer device or even a piece of paper.

In other words, software in New Zealand is a way too far from representing a non-patentable subject matter and, when assessing its patent eligibility, the local courts could apply EPO’s well established authority of the so called „any hardware approach“.

Comments (2)

  1. 29 August 2013

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