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02 August 2010
The Commerce Select Committee reported on the Patents Bill on March 30 2010. Its report contained a suggested amendment that would exclude all computer programs from patent protection (for further details please see "Select committee report on Patents Bill: computer software not patentable").
The Ministry of Economic Development was understood to be considering an amendment to the wording of the bill to allow some computer programs to be patented. The amendment was expected to bring the wording of the exclusion closer to the restriction contained in the European Patent Convention.
However, on July 15 2010 Commerce Minister Simon Power announced that he considers a further amendment to the bill to be neither necessary nor desirable. He instructed the Intellectual Property Office of New Zealand (IPONZ) to develop guidelines to allow some computer programs to be patented.
The bill is expected to proceed to a second reading in the next few months. Once the bill is enacted, IPONZ will circulate draft regulations for comment. It is also expected to develop the guidelines required by the minister at this time.
Home-grown innovation relies on the ability to patent software applications. One in five of the software patents that have been awarded in New Zealand are owned by New Zealand entrepreneurs, whereas New Zealanders own only 10% of all patents granted there. The news that the government intends computer program inventions to be patentable in the same way as in Europe is important to New Zealand industry, not just for multinational companies.
The aim has always been to bring New Zealand law into line with international norms - Australia, Singapore, the United Kingdom, the European Union, Japan and the United States all allow patent protection for inventions that are implemented in software.
The committee clearly intended that inventions which rely on embedded software - that is, software which is built into a physical device or contributes to a piece of machinery - should remain patentable. However, the wording of the bill when reported back from the committee did not make this clear: it simply stated that "a computer program is not a patentable invention".
Clear wording is important, but it will not be effective in practice unless the protections that it offers give investors the confidence to back New Zealand ingenuity that relies on a software application.
Software patents are only a small part of the bill and account for only 3% of all New Zealand patents, but they are integral to the success of the New Zealand economy.
For further information on this topic please contact Matt Adams at A J Park by telephone (+64 9 356 6996), fax (+64 9 356 6990) or email (firstname.lastname@example.org).
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