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New Zealand has NOT banned “software patents”

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New ZealandSeemingly from New Zealand to London and from New York to Kalamazoo, the Internet has been awash with news articles announcing that New Zealand has banned software patents*. There’s only one small problem: the “NZ bans software patents” title is bobbins because, simply put, New Zealand has not banned “software patents”! So what’s this hullabaloo about and why are all the popular articles such an omnishambles?

The appearance of all the articles about New Zealand patent law has arisen because the New Zealand Patents Bill, the first major update to the NZ patent system in decades, passed its third and final reading yesterday before Royal Assent. As described here, the issue of the patentability of computer programs in New Zealand was debated at some length during the progress of the Patents Bill and was resolved only once the bill was amended to exclude computer programs “as such” from patentability.

Readers familiar with the European and UK patent systems will recognise the “as such” wording from our own patent legislation and could, correctly deduce, that New Zealand is merely modifying the way it deals with “software patents” towards either the European or UK systems.

In fact, as highlighted in Supplementary Order Paper No 237, New Zealand is moving towards the UK approach to computer programs and patentability. As noted in this tweet from the NZ patent firm Henry Hughes it is expected that New Zealand will begin to adopt the UK’s 4 step Aerotel/Macrossan test.

So, don’t believe everything you read (here, here, here, and, my personal favourite here [it confuses patents and copyright as well as mentioning the software ban]) because it seems the popular press aren’t letting accuracy get in the way of a good headline!

More information:

  • NZ Parliament link to the Patents Bill – here.
  • Supplementary Order Paper No 237 – here.
  • Good discussions of the Patents Bill and the computer program issue – here, here and here.
  • UK approach to computer implemented inventions – here and here.
  • European approach to computer implemented inventions – here.

Mark Richardson   29 August 2013

* The term “software patents” is not one that appears in UK/EP legislation and caselaw which instead refer to “programs for computers”, “computer programs” and “computer-implemented inventions”. However, tackling the terminology as well as the NZ articles would make this post a rant too far….

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