Report of MED re-introducing Software Patents

Most NZOSS readers will now be aware of this removed, but cached blog that referred to a meeting that NZICT had with MED. NZICT came away with the impression that MED were changing the intent of the Commerce Select Committee's recommendation, and changing the legislation in a way that would allow software to be patentable after all. The Google cache seems to have expired:…

Fortunately, copies of the post were made. We are posting it here so that other internet sites can link through to the wording:


New Zealand Brings Software Patents back From Brink of Extinction New Zealand looks like its reversing course on software patent protection. On June 9, there was a meeting between representatives of NZ Ministry of Economic Development (MED) and representatives of NZICT Group. It appears that New Zealand is likely to ultimately adopt an approach to software patents that is consistent with the EPO’s position. My thanks to Jim Hallenbeck (Schwegman) and Paik Saber (IBM) for relaying this information.

Here is the summary of the meeting provided by Brett O’Riley CEO of NZICT:

Our representative delegation met with MED in Wellington yesterday. This was to discuss the formal submission we had made to Hon Simon Power last week covering our concerns about the proposed draft legislation.

The end result of the meeting was extremely encouraging. While section 15 (3A) will not be removed (our ideal outcome), Hon Simon Power has asked MED to work with the Parliamentary Counsel’s Office to redraft the section along the lines of the European Patent Convention. He has informed the Commerce Select Committee that Crown
Law will be undertaking some redrafting before the bill gets to its Second Reading.

While it’s obviously not the end of the journey, it was very pleasing to have a positive indication that the Government recognises there is a need to amend section 15(3A) to make sure it’s consistent with the intent of adopting European practice. While European law does restrict software patents this is positive progress, and the view of our team is that this would be a good outcome for the New Zealand ICT industry.

In summary, the MED confirmed earlier statements from Select Committee members and MED officials that the intent was to follow European law (even though this is not mentioned in the Commentary to the Patents Bill). The MED acknowledged that amendment is required to achieve this, and that the Minister supports finding a reasonable way forward
on this point before proceeding with the Bill.

The meeting was attended by myself, as well as Peter Wren-Hilton from Pingar, Dougal Watt and Julie Motley from IBM, and Waldo Kuipers from Microsoft. There was an apology from Ed Robinson (Aptimize) though I verbally covered his concerns. From the MED, Rory McLeod (Director – Competition, Trade and Investment Branch) attended, as did Silke Radde and Warren Hassett who are responsible for overall IP policy and the Patents Bill respectively.

Rory McLeod began with an update on the Patents Bill clause 15(3A).

He described the decision of the Select Committee as being to move to a “normal patentable situation as in Europe”, that did not allow patenting of software per se.

Rory then went into some detail (partly in response to questions we had raised) about what the Select Committee intent was:

  • The intent had never been to ban software patents outright (and the MED would have serious concerns about that if it were proposed).
  • If it is patentable in the EU then it should be patentable in New Zealand.
  • Software should be treated like other technology, so should have a technical purpose and be an inventive step to be patentable, as in Europe.
  • Not just any software would be patentable, it would need to meet the above test.
  • Embedded or not embedded is or was not the distinction that is intended.
  • The signal that the Government wants to send is to follow European law and practice.

The MED also now clearly acknowledge that clause 15(3A) is not adequate to convey this intent. It was great being able to present practical examples of world leading software being developed by Pingar and Aptimize, and hear MED recognise the importance of these companies being able to seek patent protection.

The MED said they would adopt wording and concepts from the EPC to achieve this. The thinking was that something more than just adding “as such” is required for section 15 (3A) to adequately convey its intent. The task of drafting the provision would be left to the Parliamentary Counsel’s Office and MED were neutral on how it would look. When asked the MED said they would welcome NZICT Group input on what the wording should be, and our group will be working on developing this for submission. The MED noted that Hon Simon Power supports the intent of the Select Committee to adopt European law and practice, and recognises that a wording change will be needed to achieve this. The Minister is happy to then take the Bill forward on that basis.

The MED indicated they did not think the Patents Bill would come before Parliament for a month or two, and that the Minister does not intend to do more on this until there is a reasonable way forward.nThere was some enthusiasm to get the modernised law passed so that IPONZ could begin negotiating a common review and registration process for Australia and New Zealand with the Australian Patent Office.

Our approach will continue to be to work closely with MED until the redrafted bill has been sighted. We will also continue to socialise the issue with other stakeholders. Please confirm you are happy with this approach. I welcome any comments you may have.


Brett O’Riley
Chief Executive Officer | NZICT Group

M +64 21 02709021 | Skype: brett.oriley
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