[A2k] no software patents in New Zealand

Paul Matthews (IITP) paul.matthews at iitp.org.nz
Thu Aug 29 03:24:51 PDT 2013

Hi all,

Definitely happy to answer any queries on this.

In short, the potentially troublesome "as such" wording is still in the legislation, however there are now additional clauses added that make it clear that this is to be interpreted in as narrow a manner as possible.

The problem with the wording in other jurisdictions (such as the EU) has been the court's interpretation. In the absence of any elaboration, patent lawyers have successfully argued (over time) for a broader and broader interpretation until they reached a point where most software patents are patentable. If this had remained on it's own, it's likely we would have inherited European jurisprudence and ended up in the same boat.

The UK courts established what's known as the Aerotel Test for software patents that basically made it clear that software-implemented "inventions" weren't considered inventions if the inventive step was solely in software. Or to put it another way, a patent for something wasn't excluded because it included software, unless the claimed inventive step was just in the software (with other parts to stop claims that a changed memory configuration, for instance, was the non-software part). While the UK has started to move away from that (they share patent rules with the EU, although often differ in interpretation), by enshrining the test in law in NZ, we're ensuring that the narrowest possible interpretation is taken.

It's actually quite innovative how the law is worded. It gets around the TRIPS requirement that all inventions in all fields of technology has to be patentable by simply stating that computer programs are not inventions. If it's not an invention it's not patentable, irrespective of TRIPS.

Hopefully that hasn't all muddied the waters further! The short version is that software is not patentable, but embedded systems (where the effect is outside the computer and the software is incidental) is patentable. But the law is very specific that the loop holes that have been used in other jurisdictions won't fly.


Paul Matthews BSc, MIITP ITCP
Chief Executive | Institute of IT Professionals NZ

P +64 4 473 1043<tel:+64%204%20473%201043>  M 021 705 212<tel:021%20705%20212>  W www.iitp.org.nz<http://www.iitp.org.nz/>  T @nzPaulM<http://twitter.com/nzPaulM>
A: Level 24, Grand Plimmer Tower, Gilmer Tce, Wellington NZ

(Sent via iPad)

On 29/08/2013, at 1:16 PM, "Susan Chalmers" <susan at internetnz.net.nz<mailto:susan at internetnz.net.nz>> wrote:

Dear Gérald, everyone,

Many thanks for your email.

"As such" does continue to reside in the language, but it is worth reading the provision in whole.
The relevant text is in this Supplementary Order Paper: http://www.legislation.govt.nz/sop/government/2013/0237/latest/whole.html.
The SOP revised the version of the Bill that you linked to. The text does provide the "Fisher & Paykel" exception as an illustration.

While this language does not go as far towards wholesale exemption as was originally proposed, the native IT industry is very pleased with it on the balance because it effectively removes software from patentable subject matter in New Zealand.

I've copied in Paul Matthews, the Chief Executive of New Zealand's Institute for IT Professionals. Paul has been a champion in this endeavour and I imagine he would be happy to provide you and the list with further detail.

A press release from IITP on the subject can be found here: http://www.iitp.org.nz/news/archives/4922-IT_Professionals_welcome_passing_of_Patents_Bill

Sincere regards,

On Thu, Aug 29, 2013 at 3:12 AM, "Gérald Sédrati-Dinet (Gibus)" <gibus at april.org<mailto:gibus at april.org>> wrote:
Dear Susan and all,

I've read today some press statements
that NZ has finally banned software patents.

Reading the patent bill
computer programs are simply excluded from patentability, without any
loopholes as the famous "as such" clause.

So this is really big news!

Can you confirm that the bill has been adopted with the text linked above?

Gérald Sédrati-Dinet
http://pascontent.sedrati-dinet.net     http://www.april.org
http://www.unitary-patent.eu            http://laquadrature.net


Susan Chalmers
Policy Lead

PO Box 11-881
Manners St
Wellington 6142
+64 4 495 2339
susan at internetnz.net.nz<mailto:susan at internetnz.net.nz>

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