NZ bans software patents - sort of

The New Zealand government has declared that software alone cannot be patented under NZ law, in a move it hopes will please local software developers.

The government has been under pressure for some time to comply with international agreements about patenting inventions, while also addressing the concerns of local developers.

On one hand, the NZ government must meet obligations set out in international agreements allowing inventions to be patented and has reportedly been subjected to lobbying by large multinationals on the matter.

On the other, NZ-based developers feared that their own development efforts would be hindered by any law that allowed software to be patented.

“You might see a logical enhancement to your software, but you can’t do it because someone else has a patent,” said Ian McCrae, CEO of NZ-based software producer Orion Health.

Last year the government proposed changes to NZ law that would mean computer programs “as such” could not be protected by a patent. This language was considered by some to be confusing and could perhaps form a loophole through which software could be patented.

Now, the NZ government has declared that a computer program is “not an invention nor a manner of manufacture for the purposes of the Bill”, with the end result being that a piece of software may not be patented in NZ.

Various groups in NZ have spoken out in favour of the changes.

But some commentators have pointed out that the changes only apply to software when it is a standalone entity.

“If the invention lies purely in software, then it is considered unpatentable,” one commentator told iam magazine.

However, the commentators said, patents could still be granted to inventions that:

“a) make use of computer programs where the contribution lies outside of the computer, or

b) affect the computer but is not dependent on the type of data being processed or the particular application being used.”

“Essentially, embedded software is patentable where it improves the operation of hardware, along with software that improves the way a computer runs,” they said.

Further discussion on the intricacies of the changes is available at qz.com.