Two-word change to Patents Bill rescues software inventors

A last-minute amendment to the Patents Bill will be welcomed by software developers, bringing New Zealand in line with international markets.

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Patentability of software has been the final sticking point after a select committee proposed to exclude software patents from the bill.

The suggestion was strongly opposed by software companies as it would put New Zealand out of step with global software firms – particularly the European market.

Whether the government was going to bend on this point was one of the most interesting points to watch since the bill, stalled in Parliament since 2010, was resurrected earlier this month.

Intellectual property lawyers at Chapman Tripp say the two-word insertion has made the difference between good legislation and bad.

And it would bring New Zealand into line with international norms.

“The move is in line with the European approach … although we would have preferred that the ban was removed from the Bill altogether in keeping with Australian and US practice,” Chapman Tripp partners Matt Sumpter and Jack Hodder SC write in the firm’s ‘Brief Counsel’ note.

The government has made a small but important decision in the interests of inventors, the New Zealand economy and New Zealand’s obligations under international law.

“It did so despite staunch lobbying from the 'free and open source' software movement who reckon that software should be, well, free. 

"An enduring difficulty with 'free software' is that it robs inventors of the incentive to innovate and create new material if others can simply free-ride on that investment. “

Intellectual property lawyers welcomed the bill’s resurrection this month, when it was boosted to the top of the pile of tasks for the government to complete as part of its Building Innovation report.

That put patent law reform on track for the end of the year, expected to make New Zealand a more serious player in the intellectual property field.

Baldwins Intellectual Property partner Rosemary Wallis says New Zealand’s ancient patent legislation, based on the UK Patents Act 1949 (which the UK abandoned in 1977), has put us well behind our trading partners.

The new laws are likely to make it harder for a business to get a patent, but the quality will be better and New Zealand patents will be less likely to be challenged internationally.