New Zealand Moves to Exclude Software “as such” from Patentable Subject Matter

New Zealand Moves to Exclude Software “as such” from Patentable Subject Matter

Link to the proposed amendments to the Patents Bill.  

Rather than excluding a computer program from being a patentable invention, the amendments clarify that a computer program is not an invention nor a manner of manufacture for the purposes of the Patents Bill. This, in turn, prevents anything from being an invention or manner of manufacture only to the extent that a patent or an application relates to a computer program as such. This approach is considered to be more consistent with New Zealand’s international obligations such as the TRIPS agreement, which contains restrictions on the ability to exclude inventions from patentability. This approach is also more consistent with the European approach and makes it clear that where the actual contribution of an invention lies solely in it being a computer program, it is ineligible for patent protection.

The amendments also clarify that 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. The effect of this approach is that it will not be possible to obtain a patent for an invention that involves or makes use of the computer program if the sole inventive feature is that it is a computer program. It will still be possible for a patent to be granted for an invention that makes use of or comprises a computer program, including an invention involving embedded computer programs, if the actual contribution lies outside the computer or which, if it affects the computer itself, is not dependent on the type of data being processed or the particular application being used.