The Commerce Minister, Craig Foss, has proposed a last minute change to the pending Patents Bill which would have excluded software patents. His Supplementary Order Paper No 120 proposes the following changes:
Delete Section 15(3A) altogether. This is the explicit software exclusion being removed: "A computer program is not a patentable invention."
10A Computer programs
(1) A computer program is not an invention for the purposes of this Act.
(2) Subsection (1) prevents anything from being an invention for the purposes of this Act only to the extent that a patent or an application relates to a computer program as such.
The problem is sub-clause (2). The inclusion of the two words "as such" effectively undoes the software exception, and opens New Zealand's legislation to the same problems seen in European patent legislation. See our References for why "as such" effectively removes the software exception and creates legal uncertainty.