Update: part 2 of this post is here.
Queen’s Counsel Andrew Brown has today written an article in which he confirms that the “as such” proviso added to the Patents Bill in its second reading will allow software patents to continue to be granted in New Zealand. As he states (emphasis added):
… the Government amendment, now incorporated into the Bill following the second reading, will effectively allow the patentability of computer programs except where these have no technical effect e.g. algorithms, schemes or plans.
This confirms that unless the Government wants to allow the patentability of computer programs to continue in New Zealand, the “as such” proviso must be removed.
The effect that Andrew Brown QC says will result from the “as such” proviso (allowing software patents, except in specific circumstances) is demonstrably contrary to the unanimous recommendation of the Commerce Committee, as well as the stated intention of the Government. It confirms beyond any doubt that the “as such” proviso undermines the clear exclusion of software patents.
The IT industry petition against the “as such” proviso arose from this very concern. This was based on overseas evidence about the detrimental effect of the “as such”proviso.
It is therefore very timely to have a New Zealand QC confirm that adding the “as such” proviso to the Patents Bill will allow the patentability of computer programs to continue. If the Government wants to exclude software patents in New Zealand, it is therefore beyond question that the “as such” proviso must go.