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Brief Counsel

Inventors rescued by two word change to Patents Bill

29 August 2012

The last minute insertion yesterday by Supplementary Order Paper (SOP) of two words into the Patents Bill has made the difference between good legislation and bad, in our view.

The late amendment ensures that computer implemented inventions remain patentable.  The change brings New Zealand into line with international norms and was achieved in spite of strong opposition from the “free software movement”.

“As such”

The SOP inserts the words “as such” to provide protection for innovative software while excluding pure computer programs from the patents regime.

The move is in line with the European approach and is a solution which Chapman Tripp proposed in March last year, although we would have preferred that the ban was removed from the Bill altogether in keeping with Australian and US practice. 

The patentability of software had been the final sticking point in years of fitful consultation over the new law.  We think the Government has made the right call.

Much at stake

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. 

We look forward to the enactment of the amended Patents Bill.

The explanatory note to the SOP records that this approach is “more consistent with New Zealand’s international obligations... and overseas precedents”.  We agree.

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