Recently the NZ govt announced that it was to remove software from the list of items that can be patented. This decision came after hectic lobbying from the open source community on one side and the proprietary vendors on the other side.



For the past few months, the debate revolved around the section titled “Patentable Inventions” in the Patents Bill. Right off the bat, this section says, “We recommend amending clause 15 to include computer programs among inventions that may not be patented.” This obviously did not go too well with the pro-software patents lobby and open source supporters feared that this recommendation may be overturned. However, on 15th July, 2010, a New Zealand Government web site reported that Commerce Minister, Simon Power instructed the Intellectual Property Office of New Zealand (IPONZ) to develop guidelines to allow inventions that contain embedded software to be patented. "My decision follows a meeting with the chair of the Commerce Committee where it was agreed that a further amendment to the bill is neither necessary nor desirable," Mr. Power said.

As it stands today, the Patents Bill says, “We received many submissions concerning the patentability of computer programs. Under the Patents Act 1953 computer programs can be patented in New Zealand provided they produce a commercially useful effect.3 Open source, or free, software has grown in popularity since the 1980s. Protecting software by patenting is inconsistent with the open source model, and its proponents oppose it. A number of submitters argued that there is no “inventive step” in software development, as “new” software invariably builds on existing software. They felt that computer software should be excluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques. In general we accept this position.”

In updating its policy position, the New Zealand government acknowledged the growing importance of open source, and the logical reasons for excluding software from the list of patentable inventions. The Bill does make an exception for embedded software. The relevant section says, “While the bill would provide adequate incentives for innovation, however, we are aware of New Zealand companies who have invested in a significant number of software-related inventions, involving embedded software.4 We sought advice on the approach taken in other jurisdictions such as the United Kingdom and the United States, and whether legislation that would enable “embedded software” to be patentable might be practicable. After careful consideration we concluded that developing a clear and definitive distinction between embedded and other types of software is not a simple matter; and that, for the sake of clarity, a simple approach would be best. We received advice that our recommendation to include computer programs among the inventions that may not be patented would be unlikely to prevent the granting of patents for inventions involving embedded software.

“We recommend that the Intellectual Property Office of New Zealand develop guidelines for inventions containing embedded software.”

For the moment, it is clear that the engagement of open source advocates with the NZ government has succeeded in effecting a significant policy change.