The End of the "Wild West" for Software Patents—Does the Patents Act 2013 Change New Zealand's Treatment of Software Patents From Permissive to Restrictive?

INTRODUCTION I. NEW ZEALAND AND PATENTABLE SUBJECT MATTER A. Impetus for Reform in New Zealand B. Patentable Subject Matter Under the Patents Act 1953 and the Treatment of the Patentability of Computer Programs C. Patentable Subject Matter Under the Patents Act 2013 and the Treatment of the Patentability of Computer Programs D. What Affect Will the Changes Have? II. HAS THE PATENTS ACT 2013 BROUGHT NEW ZEALAND'S TREATMENT OF THE PATENTABILITY OF COMPUTER PROGRAMS IN LINE WITH EUROPE? A. Compare the Treatment of Computer Program Patentability Under 1953 Act to the United States B. Compare the Treatment of Computer Program Patentability Under 2013 Act to the European Patent Convention C. New Zealand has Shifted from a United States Style to a European Style in its Treatment of the Patentability of Computer Programs CONCLUSION INTRODUCTION New Zealand, like many former English colonies, is a common law jurisdiction, and therefore, draws its basic doctrinal tradition in intellectual property from that of the United Kingdom. (1) However, New Zealand does not recognize the right to a patent under common law; therefore, the right to a patent in New Zealand is statutory-based. (2) The New Zealand Parliament enacted a statutory right to a patent through the Patents Act 1953 (the "1953 Act). (3) The 1953 Act is based off of the Patents Act 1949 of the United Kingdom, (4) which was repealed in the United Kingdom by the Patents Act 1977. (5) While the 1953 Act has undergone minor revisions, (6) it has served as the primary basis for patent law in New Zealand since its inception. (7) New Zealand has been contemplating significant changes to the 1953 Act for over a decade, (8) which commenced with a review of the 1953 Act by the Office of the Associate Minister of Commerce. (9) After significant time to consider the review of the 1953 Act and the public submissions received in response to Review of the Patents Act 1953: Boundaries to Patentability A Discussion Paper (the "Discussion Paper"), (10) Patents Bill 235-1 (11) was introduced (12) as a government bill (13) on July 9, 2008. (14) After proceeding through the proper legislative process, (15) Patents Bill 235-216 received Royal Assent from the Governor General (17) on September 13, 2013 and was enacted as the Patents Act 2013 (the "2013 Act"), repealing the 1953 Act. (18) The 2013 Act came into full effect on September 13, 2014. (19) The 2013 Act is significantly different from the 1953 Act. This Comment focuses on one significant change: the 2013 Act's treatment of patentable subject matter. This Comment focuses on the differences between the 1953 Act and the 2013 Act as it pertains to patentable subject matter. In particular, this Comment examines how this change affects the patentability of computer programs and computer software (collectively "computer programs"). While commentators, such as Rob O'Neill from ZD Net (20) and Christopher Mims from Quartz, (21) believe that the 2013 Act contains an outright ban on the patenting of computer programs, I will argue that the 2013 Act is consistent with the European treatment of the patentability of computer programs. This Paper is organized into three sections. Section I discusses patentable subject matter under the 1953 Act, patentable subject matter under the 2013 Act, and compares how each act treated the patentability of computer programs. In order to provide a basis for the comparison, Section I further discusses the reasons behind the change to patentable subject matter and the patentability of computer programs. Section II discusses the effect these changes may have on patenting computer programs in New Zealand. Finally, Section III examines the patentability of computer programs in the United States and in Europe, and argues that New Zealand's treatment has simply switched from being similar to the treatment in the United States to being similar to the treatment in Europe. …