16 July 2010

Confirmation that New NZ Patents Act Will Exclude "Computer Programs"

We previously reported (here) that the New Zealand Commerce Committee had recommended an exclusion for computer programs following their review of the proposed Patents Bill, in view of numerous submissions from interested parties.

We also reported (here) on subsequent indications that Commerce Minister Simon Power was contemplating a partial backdown on supporting this recommendation.

We can now confirm that this has not come to pass.  The Minister yesterday announced that no further amendment to the Patents Bill is "necessary or desirable."  Instead, he has "instructed the Intellectual Property Office of New Zealand (IPONZ) to develop guidelines to allow inventions that contain embedded software to be patented."

We have said before, and we will no doubt say again, that it is the experience of every government, patent office and court that has ever attempted to draw a "bright line" between patentable and unpatentable computer-implemented inventions, that this is a futile exercise. 

It has taken more than two decades of jurisprudence in the European Patent Office, the US Court of Appeals for the Federal Circuit (and its predecessor) and the US Supreme Court, and the Australian Federal Court to get each of those countries to their respective present positions on so-called "software patents", and other countries have had similar experiences.  While there is far greater certainty today in all of these jurisdictions as to where the respective boundaries lie, grey areas remain.

Less than three years ago the UK Intellectual Property Office and the English courts were still flip-flopping on the validity of "computer program product" (ie Beauregard) type claims, and apparatus claims in which the novel features were embodied solely in the form of program code stored on a suitable carrier (eg a hard disk or in memory).

We wish IPONZ the best of luck with its guidelines, but we are not convinced that it will succeed where competent legal and technical minds across the world have failed.  We will, in any event, look forward to reading the guidelines.


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