New Zealand Ends Patents for Basic Software

Sep 1, 2013

New Zealand Ends Patents for Basic Software

By Lucy Craymer

International technology giants won’t be able to get patents for basic software under a law passed by the New Zealand government, although protection for significant innovations and programs will remain under the country’s copyright law. The New Zealand government updated its 60-year-old patent bill with a new law that acknowledges overseas influences in New Zealand but perhaps more controversially prevents both local and international companies receiving patents for their software. Local patent experts say the move brings the country in line with the U.K. and Europe, which already prevent the patenting of software. Under the U.K. law, a number of smartphone patents that Apple Inc. wanted such as a patent on unlocking a phone by performing a gesture were rejected.“By clarifying the definition of what can be patented, we are giving New Zealand businesses more flexibility to adapt and improve existing inventions, while continuing to protect genuine innovations,” said Craig Foss, the minister responsible for the bill.

The law states that software is no longer subject to the patents bill. However, it does allow for inventions that are linked to computer software such as a computer chip in a washing machine to be patented under the law as the contribution doesn’t lie solely with the program.

The law is expected to come into force in about 12 months’ time, although as yet no date has been set.  With software unable to be patented it is set to prevent the rise of patent trolls—a person or company whose sole role is to enforce patent rights— in New Zealand. Patent trolls have pushed up sharply the number of patent litigation cases being filed in the U.S., tying up the country’s court system and often forcing companies into settling due to the cost of defending the cases.

“The way that I look at it, is a computer program and a processor are just raw materials like plastic, like wire, like wood and you are not patenting raw materials but you are patenting what you’ve made with those materials,” explained Matt Adams, partner at intellectual property firm AJ Park.

But the extent of the changes to the New Zealand law will likely come down to how cases bought before the court or opposition to patents decided by the intellectual property office are decided.

“It might end up being a substantial change — a lot is going to end up being determined by either opposition proceedings or in court cases,” said Earl Gray, intellectual property lawyer at Simpson Grierson.

For technology firms, much of their software, such as Microsoft Word, would continue to be protected by copyright law, he added.

“There are some areas where they (international firms) might think they had something pretty clever and they can’t protect the concept but ripping it off in terms of copying it will still be covered by copyright law.”

Patents issued under the current law will remain valid, and Mr. Gray said some international companies might try to get patents approved in New Zealand before the new law takes effect.