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Legislative Implementation of Flexibilities - New Zealand

Title:Section 11 of the Patents Act No. 68 of 2013
Field of IP:Patents
Type of flexibility:Patentability or exclusion from patentability, of software-related inventions
Summary table:PDF

Provisions of Law

11 Computer programs

(1) A computer program is not an invention and not a manner of manufacture for the purposes of this Act.

(2) Subsection (1) prevents anything from being an invention or a manner of manufacture for the purposes of this Act only to the extent that a claim in a patent or an application relates to a computer program as such.

(3) A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.

Examples

A process that may be an invention

A claim in an application provides for a better method of washing clothes when using an existing washing machine. That method is implemented through a computer program on a computer chip that is inserted into the washing machine. The computer program controls the operation of the washing machine. The washing machine is not materially altered in any way to perform the invention.

The Commissioner considers that the actual contribution is a new and improved way of operating a washing machine that gets clothes cleaner and uses less electricity.

While the only thing that is different about the washing machine is the computer program, the actual contribution lies in the way in which the washing machine works (rather than in the computer program per se). The computer program is only the way in which that new method, with its resulting contribution, is implemented.

The actual contribution does not lie solely in it being a computer program. Accordingly, the claim involves an invention that may be patented (namely, the washing machine when using the new method of washing clothes).

A process that is not an invention

An inventor has developed a process for automatically completing the legal documents necessary to register an entity.

The claimed process involves a computer asking questions of a user. The answers are stored in a database and the information is processed using a computer program to produce the required legal documents, which are then sent to the user.

The hardware used is conventional. The only novel aspect is the computer program.

The Commissioner considers that the actual contribution of the claim lies solely in it being a computer program. The mere execution of a method within a computer does not allow the method to be patented. Accordingly, the process is not an invention for the purposes of the Act.

(4) The Commissioner or the court (as the case may be) must, in identifying the actual contribution made by the alleged invention, consider the following:

(a) the substance of the claim (rather than its form and the contribution alleged by the applicant) and the actual contribution it makes:

(b) what problem or other issue is to be solved or addressed:

(c) how the relevant product or process solves or addresses the problem or other issue:

(d) the advantages or benefits of solving or addressing the problem or other issue in that manner:

(e) any other matters the Commissioner or the court thinks relevant.

(5) To avoid doubt, a patent must not be granted for anything that is not an invention and not a manner of manufacture under this section.

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