Building a wealthier nation through innovation

Microsoft is passionate about the success of New Zealand businesses on the world stage. From Windows, to Xbox, to the cloud, many Kiwi innovators build on Microsoft technology. When these innovators succeed, we succeed. We do our best to help, with inspiration , expertise , offshore scale , and special deals for start-ups .

Innovators also need clear, predictable laws that let them choose for themselves the business model that’s the “best fit”, and prepares them for success on the world stage.

In March 2010, a new provision was inserted in the Patents Bill which will take away choice from the technology sector and diverge from international norms – and the laws of New Zealand's export markets. The scope and effect to the provision, clause 15(3A), is so ambiguous that a seven page explanatory documents published by the Ministry of Economic Development were unable to adequately clarify how the provision will be applied. In fact no one – even those who asked for a restriction – seems to be able to say exactly which (if any) patentable inventions will be excluded if the proposal becomes law.

Many changes in the Patents Bill are constructive and will help to improve patent quality in New Zealand. However, the proposed exclusion in clause 15(3A) is a step in the wrong direction. And, setting aside policy considerations, an exclusion that no one can explain will be bad law.

We think the focus should be on patent quality, not on an arbitrary exclusion. However, if there must be an exclusion, the question must be asked: “How can inventors and investors make decisions about their commercialisation strategy if it is not even clear which inventions are now to be excluded from protection?”

If no patentable inventions are to be excluded from protection, or no one can say with certainty which patentable inventions (if any) it will exclude, clause 15(3A) will just be a troublesome white elephant, leading to years of pointless litigation to figure out something the Government can easily fix now with the stroke of a pen.

Innovators were faced with similar difficulties after the adoption of an exclusion in Europe. After decades of litigation and debate, there is still disagreement about how the exclusion should be interpreted, resulting in unnecessary inefficiencies, cost and uncertainty for innovators. Ultimately, this has been to the benefit of no one. However, rather than leaving the law as it is or ensuring that a known model where case law has resolved the more serious ambiguities will be adopted, the Ministry of Economic Development has, in both versions of its explanatory papers, proposed a novel approach that departs from international norms and ensures that New Zealand will need to start the process of interpreting and applying the provision from scratch.

Our view on patents is simple. Appropriate protection for intellectual property supports innovation and commerce, and all innovators should have the option to patent their inventions.

The current law is clear. It has not caused problems. It is similar to Australia, and that similarity saves inventors and taxpayers money by reducing re-work to satisfy different technicalities and by avoiding unnecessary cost, secrecy and complexity in commercial transactions.

We are joining Kiwi innovators and their representatives in calling for clause 15(3A) to be deleted from the Patents Bill before the Patents Bill becomes law.

We think this is important for New Zealand’s future.

Laws that encourage and reward organic innovative activity are preferable to relying on Government subsidies to prop up research and development – the fruits of which could then not be used to their full potential if patent protection that is available elsewhere in the world is removed.

Those who want to build a high income, export oriented, innovation driven economy for New Zealand should reject clause 15(3A).

We encourage readers to find out more about this issue.

Microsoft New Zealand Limited's submission further expands on our views and offers an interpretation of clause 15(3A) based on legal principles. We have also collated links to some other perspectives below for ease of reference.

UPDATE: Submissions on the draft guidelines have now been published by the Ministry of Economic Development. Detailed summaries are available from AJ Park, Henry Hughes, Dr Mark Summerfield, James & Wells and in Law News - Patents bill proposes no patents for computer programs. There have also been reports in the Dominion Post and Computerworld. The pie chart below gives an overview of the preferences expressed about clause 15(3A) in submissions to the Ministry of Economic Development.

Pie chart of Patents Bill clause 15(3A) preference in submissions to the Ministry of Economic Development.

Recommended Reading:

Submission on Computer Programs Guideline, New Zealand Law Society

“The Society submits that officials should advise the Minister that to leave the Bill as it is, and continue to finalise guidelines (no matter what those guidelines say), would create ongoing uncertainty because Parliament’s intention will not be able to be discerned from the legislation.”

“If Parliament has doubts that the meaning is clear then it should follow the usual procedure and amend the Bill by supplementary order paper.”

Submission on Computer Programs Guideline, James & Wells

“In view of the proposed wording of clause 15(3A), we believe the Guidelines are both ultra vires and do not give an adequate indication of what is likely to be patentable in New Zealand under the Patents Bill. Therefore, the Guidelines are an inappropriate framework for examination of patent applications.”

Submission on Computer Programs Guideline, Bram van Melle (Maclean Law)

“The Select Committee proposed clause 15(3A) on its understanding of the difference between embedded and non-embedded software. ‘Embedded’ is a loose commercial concept not a technical distinction. […] Attempting to chart a course through this distinction will be problematic as technology is changing all the time.”

Submission on Computer Programs Guideline, Technology Interest Group

“Our group has grave reservations about the Guidelines, and the Patents Bill 15(3A) change on which they loosely rely. Both will increase the uncertainty surrounding patent protection for inventions, and thus increase patent application, litigation and business costs.”

Software: to patent or not to patent, Matt Sumpter (Chapman Tripp)

“[I]n this case the addition of clause 15(3A) introduced a new element which hadn’t been hinted at in the Bill before and it wasn’t something which many of these companies directly affected had even considered, let alone submitted on.”

Submission on Computer Programs Guideline, Business NZ

“BusinessNZ is perplexed as to how a process that started and continued through with a high level of consultation and considered views over the last ten years seems to have fallen at a crucial hurdle in a key area many considered would be left unchanged, as indicated during all stages of the consultation process up until the proposed Clause 15(3A) exclusion was introduced in March 2010.”

Opinion: Fog warning on computer-implemented inventions , Matt Adams (AJ Park)

“People who were opposed to ‘software’ patents emphasised that innovation is strong, even ‘rampant’, with the law that’s in place. One said the software industry is ‘highly competitive, innovative and prosperous,’ and another pointed out that New Zealand was appealing ‘due to the healthy and innovative software industry here.’ Statements like these suggest those who were most opposed to ‘software’ patents had not experienced any detrimental effects from our current law.”

Some musings on the Patents Bill , Elena at Elena's Blog

“In this day and age of clear and concise legislation that can be understood by the man (or woman of course) on the street, it is ridiculous that the plain and clear words of an Act – ‘A computer program is not a patentable invention’ – is not intended to mean what it appears to mean.”

Comparison of UK patent system and proposed New Zealand patent system with respect to patentability of computer-implemented inventions , Olswang LLP

“The New Zealand Patents Bill and draft ‘Examination Guideline: Patentability of Inventions involving computer programs’ are not consistent with UK Patent Law or with European practice more generally. UK Law excludes only claims to computer programs ‘as such’ so that in practice many patent applications for computer-implemented inventions are granted. In contrast, the New Zealand Examination Guideline adopts a far broader interpretation that would appear to exclude from patent protection virtually all computer-implemented inventions.”

NZICT calls for caution over abandoning software patents , New Zealand Information and Communication Technologies Group Inc

“NZICT chief executive Brett O’Riley says the country’s software development sector deserves the same protection as other sectors where invention and innovation occurs.”

“Software patents, while acknowledged as a less than perfect solution in some areas, are none-the-less integral to an individual or company’s right for commercial protection and essential for competing globally. We believe that it is very important that companies retain the option to protect their innovations under patent law, if that is their choice.”

Submission to the Commerce Select Committee , Henry Hughes

“We also support the continued patentability of computer software in New Zealand. [...] We consider that concerns about the novelty and obviousness of computer software patents will be mitigated by the more stringent examination criteria under the new Act.”

Submission to the Commerce Select Committee , New Zealand Institute of Patent Attorneys Inc

“We agree with an invention being patentable on the basis that it is a ‘manner of manufacture’, provided that the exclusions of clause 15 are deleted. […] Exclusions to patentability are not needed for the reason that the courts’ interpretation of ‘manner of manufacture’ enables flexibility to deal with changes in technology [...].”

Submission to the Commerce Select Committee , Fisher & Paykel Appliances Limited

“In relation to the subject matter excluded from patentability under clause 15 [Fisher & Paykel Appliances] specifically supports the absence of ‘computer software related inventions’ from the listed exclusions.”

“A significant proportion of FPA inventions are software related inventions. Much of what it once achieved using dedicated hardware circuitry is achieved using software controlled microprocessors. Many FPA product development engineers are software engineers. […] FPA has been seeking such software related patents since 1985.”

The computer programs affair , Chapman Tripp

“Computer programs run cars, telephones, pacemakers, whiteware and all manner of other gadgetry. Why would you exclude an inventive new camera, eftpos terminal or navigation system from patentability just because it is run by a computer program or used with a computer? Well you wouldn’t.”

Comments (34)
  1. Joel Wiramu Pauling says:

    This is a very one sided presentation of the various submissions that were heard in the select committee.

    Here is my Masters Thesis which actually presents an analysis of what people and organizations actually presented:…/1027

    I would wager that in terms of raw import/export economic arguments that a better one can be made by making New Zealand a safe haven for Reverse Engineering and Interoperability research testing and development, and shielding developers based here from patent infringement legal costs.

    Joel Wiramu Pauling

  2. Waldo says:

    Joel, thank you for your observations on this important discussion. I will read your analysis with interest. Out of curiosity, which inventions do you consider that clause 15(3A) will exclude?

    Waldo [MSFT]

  3. JoelW says:

    Wrt clause 15(3A) – Based on F&P's lawyers arguments I assume that they have convinced the policy makers that embedded software (i.e anything burned into an IC) will be covered – which IMHO is just as erroneous as any other patent being allowed –

    The fast and hard of it is, that Patents, as they are used today, having nothing to do with innovation and everything to do with Legal Battles and International Trade Policy. The only reason you file or take out a licence on a Patent is to prevent yourself being sued, or to have a bartering chip when you infringe. Digital artifacts have no hard resource limits on the way they can be manipulated by people, which arguably is why patents in manufacturing sectors are not so economically morbid as those applied to conceptual realms (such as business methods, software and medical diagnosis). You simply can't exist in a world of ideas which are arbitrarily given exclusive punitive rights to those who were first to file.


  4. Dave Lane says:

    Unfortunately, this is a rather one-sided view of the Patent issue, which benefits Microsoft's monopolistic practices rather than indicating the tenor of the kiwi software industry. Historically, patents existed to provide an incentive for inventors to make their inventions public – to benefit the "greater good" – by providing the inventor with a government granted monopoly on a particular invention. This monopoly is an inherently *bad* thing economically, and should only exist if, in fact, innovation benefiting the public is the result.

    The specific definition of "software" in this context is largely irrelevant – it is a legal detail, for which those lawyers writing the legislation can request guidance from those of us who actually write software – after all, we actively define what "software" is by our actions and innovations. The last thing we need is for a lawyer to be in charge of determining that definition without our input. The principle of excluding software from patentability is valid independent of the specific legal definition of software.

    In the software industry, patents are not an incentive to create – until recently almost no kiwi software developers in NZ even considered patents when investing in new softarwe development. It has definitely *not* been an incentive for us (kiwi software developers). For the record, 80+% of kiwi patents (software and otherwise) are held by overseas companies.

    Moreover, in the US (and Microsoft is feeling the brunt of one of this trend now with the i4i suit which threatens MS' ability to see its flagship MS Office in the US) software patents in particular are

    a) being granted for routinely for trivial "innovations" or innovations actually developed by others previous (prior art), and these overly broad, poor quality patents

    b) are being used to inhibit competition (and thereby investment and innovation) in entire areas of software.

    Some of the worst "Patent Trolls" interestingly, are ex Microsoft employees. One noteworthy example is Nathan Myhrvold of Intellectual Ventures. Patent Trolls exist simply to gain revenue from buying up software patents from their original developers and initiating (or threatening to) litigation against other software developers who ay (or may not) be infringing on those patents, forcing them to settle and/or pay an on-going royalty to his firm for… having a good idea and turning it into a saleable product.

    The activities of these patent trolls, widely reported in the IT media, have seen software patents move from being totally obscure to most software developers less than a decade ago, to being front-and-centre in the minds of many of us. We see them as a huge *disincentive* to enter markets where software patents might apply. In fact, in NZ (as in other countries), software patents will, if allowed to continue as they currently are, cripple software innovation through liability: any new software innovation we develop *could* result in us being the target of a lawsuit by some unknown patent holder which would force us to spend money defending against, or, at the very least, pay royalties for dubious patents which remove any profit we might make. It's not sustainable.

    The reality is that most kiwi software developers (80% of NZ Computer Society members, for instance) are decisively against software patents.

    A new organisation NZRise ( has formed to represent the views of these kiwi owned IT organisations, largely because Microsoft and other multinational corporations are so dominant in the positions espoused by the NZICT Group, and other IT-related industry groups in NZ.

    I believe that Microsoft wants software patents because it is currently dominant in a number of important facets of the software industry: it wants patents to bolster its existing monopolies and put potential competitors at a disadvantage. This will do nothing whatsoever to encourage innovation, and will eventually force kiwi software developers to become a minor part of the fringe of Microsoft's global software hegemony, or out of business.

    Dave Lane

  5. Waldo says:

    Thanks Joel for the further comments.

    The F&P submission is one that was made to the Commerce Select Committee in 2009. You would need to talk directly with policy makers, I am unsure of their perspective on the issue of where a line could sensibly be drawn between embedded and other software.

    I think it's important for law to be clear, particularly in the realm of property rights. Otherwise it is difficult for innovators to make effective use of that law.

    Waldo [MSFT]

  6. Waldo says:

    Thanks Dave for your detailed observations.

    Respectfully, I disagree. It is important that the law is clear.

    While the principle of the exclusion may be clear to you, it is not apparent from the text of 15(3A). That makes the provision problematic for the innovators who want to use the patent system, because they will need to apply the text to real circumstances.

    Waldo [MSFT]

  7. Paul Matthews says:

    Waldo, it's interesting you've chosen to only include submissions and commentary supporting the minority view posed primarily by a small number of multinationals and their lawyers.

    I can't say I'm overly surprised that patent lawyers are pleading for more things to patent. You don't see turkeys voting for Christmas either.

    The piece also ignores the fact that *New Zealand* innovators, including the two largest software exporters in New Zealand (Orion Health and Jade) together representing around half of all software exported have come out AGAINST software patents, the former having been the target of their innovation-crushing effect in the form of legal maneuvers from both competitors and non-technology law firms previously.

    You also appear to have missed the fact that the majority of the New Zealand software sector is firmly against software patents. From an association perspective almost all organisations have spoken out against them including NZCS, the Software Association, NZRise, InternetNZ, the Open Source Society and others. This is nothing new – the previous vendor body (ITANZ) also led the charge against them actually instigating legal action to prevent patents such as Amazon's one-click patent gaining traction in New Zealand.

    As you are aware, a recent poll by NZCS found that 81% of members supported NZCS's view that on balance software shouldn't be patentable in New Zealand. For the other side of the view expressed above, including a link to a letter to the Minister outlining the key reasons software patents are bad for innovation in New Zealand, see

    And lastly, I see a submission from someone calling themselves the "technology interest group". Can you confirm whether Microsoft are a founding member or involved with this "group"? I wonder why they're not prepared to put their name to their views, assuming that it is a "they" of course.


    Paul Matthews

    NZCS Chief Executive

  8. Waldo says:

    Hi Paul, thank you for taking the time to express your opinion.

    If there is to be an exclusion, then surely it is important to get it right. I would be interested to know what you mean by software patents. And, if those are what should be excluded, would clause 15(3A) do that? Which inventions would clause 15(3A) exclude from patentability?

    Waldo [MSFT]

  9. Dave Lane says:

    Thanks, Waldo, for your response. I respectfully disagree with your disagreement. If an "innovator" is, in fact, in a position to create innovative software he or she is not likely to need a legal definition of software, because, based on the current statistics we have regarding kiwi software developer support for software patents, he or she will not consider applying for one. More over, as a software developer, she or he will, *be* defining (or redefining) what software is based on what she or he produces.

    If, on the other hand, the patent applicant is a lawyer for Microsoft or some other "interested party" (e.g. a patent troll), then he or she won't actually be doing any innovating, and as such, should not benefit from the government granted monopoly which a patent represents.

    Regarding your admirable but futile position on improving software patent quality, I draw your attention to your own employer, Microsoft, and their attempts to game the NZ Patent system by applying for a patent on a straightforward (i.e. obvious) XML process for which Microsoft already knew, at the time of application, substantial prior art existed.…/F68C4D35A4AE5DD5CC257038000F4A24

    I believe that Microsoft's management responsible for the application simply thought that no one was paying attention, and that they could slip patent application – which failed in other jurisdictions like the US, the EU, Japan, and South Africa due to prior art – without anyone noticing.

    The fact that someone in the NZOSS ( *did* find Microsoft's patent, and that we as an organisation funded the necessary legal costs to contest it, resulted in the patent which was eventually granted being substantially altered, and its scope narrowed. But our finding that patent was a bit of a fluke.

    The question is: how many other bad patents have we missed?  I, for one, hope it becomes a non-issue because the need to do so is unjustifiable.

    (I could be mistaken, but I understand that IPONZ assessors do not normally perform obviousness" or "prior art" assessments on patent applications – patent applications go through unless someone contest them… at their own cost.

    This is a fact which wealthy multinational corporations can exploit by applying speculatively for all manner of software patents, eventually allowing them to hold the kiwi software industry (or key players in it) to ransom, or at least control the industry by using their patents to pick some developers over others to receive royalty-free licenses.

    The only way that IPONZ could hope to maintain the expertise to assess software patents properly would be to hire all NZ's software developers to assess patents applications instead of writing software – because let's face it, it's a lot more fun to write software than to review that of others… If IPONZ did go down that route, however implausible, I suspect it would have a detrimental effect on NZ's international competitiveness in software development)

    Dave Lane

  10. Waldo says:

    Dave, thank you for the follow-up.

    If I may quote from your submission to the Commerce Select Committee, dated 17 August 2009, on behalf of Egressive Limited and another: You mention that you believe "NZ's software industry is already innovative" and that "innovation is already rampant in these areas".

    It appears from your submissions that you were either entirely satisfied with the current law, or not aware that patents have been granted for computer-implemented inventions in New Zealand since 1995.

    If patents really are as harmful as you suggest, it does seem odd that you had not noticed that they are already law.

    Besides, many are using the patent system. IPONZ data shows that more than 200 Kiwi innovators have NZ patents for computer-implemented inventions. Those innovators, and others like them, will need a clear definition of what is to be excluded by clause 15(3A).

    An exclusion will have an impact on them. So, I do think it is important that clause 15(3A) is clear and usable for their needs, even if you have not found any need to interact with the patent system.

    Waldo [MSFT]

  11. Dave Lane says:

    As I mentioned in the previous two posts, Waldo, as far as I can tell, most kiwi software developers, including me, were largely oblivious to software patents until a few years ago.

    We certainly weren't motivated to develop innovative software because of them. It was only with the publicity surrounding abuse of software patents in the US, and in NZ (by Microsoft) that most kiwi developers became aware software patents and the liability they represent. It's telling that of the thousands of kiwi software development businesses and tens of thousands of professional kiwi software developers, and probably hundreds of thousands of innovative software projects for which they are responsible, there are only 200 software patents.

    By the way, how many of those 200 were awarded to Microsoft development partners like Aptimize and Intergen? More pointedly: which of those 200 patents would withstand scrutiny of actual software developers with regard to obviousness and prior art?  Hmm. Based on the small sample I've looked at, it would be a precious few.

    Another question: why isn't someone at Intergen or Aptimize writing this essay instead of you? Surely having an at least *somewhat* kiwi-owned company writing this would give it greater credibility than having an emerging patent troll like Microsoft doing it (…/salesforce-com-ceo-on-microsoft-suit-whatd-you-expect-from-a-patent-troll
    ). Based on their lack of contribution to this process, it seems reasonable to believe software patents aren't a big deal for them.

    PS on this MS blog, I always have to submit comments twice (Firefox 4 on Linux) to get the submission to register… is that by design?

    Dave Lane

  12. Waldo says:

    Hi Dave, thank you for sharing your thoughts.

    You do not appear to have clarified what clause 15(3A) will mean for innovators who do wish to use the patent system.

    You can continue to post additional thoughts as they arise, but I think understanding the practical implications of clause 15(3A) is a point that needs to be addressed regardless of personal views about whether an exclusion is good or bad.

    Waldo [MSFT]

  13. Dave Lane says:

    [Post removed due to inappropriate language. Please edit and re-post.]

  14. Paul Matthews says:

    Waldo – the exclusion (and corresponding IPONZ Guidelines and indications to the Courts) effectively means that only inventions with a physical component that is in itself nonobvious will be patentable.

    Just like the implicit or explicit exclusion of all other things without a nonobvious physical effect/component such as a story, book, movie, drawing, mathematical formula, Pi, etc. Imagine if the first person to write a "thriller" novel was able to patent the idea and prevent all other thrillers. That's what you're advocating for software.

    As with most of the other examples those that write software can still rely on all other forms of intellectual property protection – ie copyright, trademarks and trade secrets. If someone copies your work you still have the weight of the law behind you to seek relief.

    Given the nature of software we believe copyright is a far more appropriate means of protection and doesn't cause the significant potential liability, issues and handbrakes to innovation that Patents create to all software developers.

    For instance global revocation of software patents would mean that every person who independently comes up with the idea of allowing a quick online purchase with a single mouse click, or auto-activation of interactive content on a website, or any manner of other things you and I would consider "obvious" wouldn't have to pay licensing fees or face legal action from the first company that grabbed a patent for it. (Or the law firm that "bought" the patent with the intention of attacking developers who might have unintentionally implemented something covered by one of the hundreds of thousands of software patents around the world).

    Thanks, and I hope this helps outline what the exclusion means, an exclusion which we and most others in the software sector welcomes.

    Kind regards,

    Paul Matthews

    CEO, NZ Computer Society Inc

  15. Paul Adams says:

    Dear Mr Matthews, EverEdge IP is part of the technology interest group and filed the submission on behalf of the group. As such I am aware of the membership of the group which is described in the submission. The decision that was taken not to discuss the membership of the group broadly and the reason for this decision are described in the submission. Microsoft is not a member of the group. As mentioned in the submission, all group members are either individuals or New Zealand owned and operated. I can confirm on the group's behalf that we would be pleased to disclose our membership to the Minister should that be requested.

    Yours faithfullly

    Paul Adams, CEO, EverEdge IP

  16. Matt Adams says:

    I remember looking at some stats on patents last year.

    There were just over 1,000 NZ patents that looked like computer-implemented inventions. Just over 20% of these are held by New Zealand individuals, New Zealand companies or New Zealand institutions. This is twice the claimed "going rate". MED claims that New Zealanders own only 10% of all patents granted here.

    These 1,000 patents represent just 3% of all New Zealand patents.

    IPONZ treats computer-implemented inventions no differently to other inventions. So they are not classified separately. Patent applicants are encouraged on filing to say whether their invention is chemical, mechanical or electrical.

    Patent applications are assigned international patent classification (IPC) codes which gives some idea of the area of technology. The 1,000 patents we found all had IPC codes assigned that tend to be assigned to computer-implemented inventions.

    I'm not aware of any patent litigation in New Zealand involving patents for computer-implemented inventions over the last 15 years that they have been available.

    Matt Adams

  17. Waldo says:

    Hi Paul

    Thank you for clarifying the NZCS view of the guidelines and clause 15(3A):  

    “only inventions with a physical component that is in itself nonobvious will be patentable”

    If you are correct, the draft guidelines would seem to directly contradict the express wishes of the Minister and the Committee and clause 15(3A) does not achieve its purpose:

    “[C]ompanies investing in inventions involving 'embedded' computer programs should be able to obtain patent protection for these inventions. The committee and the Minister accept this position.”

    In fact Microsoft New Zealand Limited has raised precisely this problem in the submission attached to this blog post:

    “The implication of this analysis is clear: Novel software in all forms would be excluded from patent protection, irrespective of whether (or how closely) it is integrated with hardware elements. This obviously would place 'embedded software' within the scope of the exclusion, whereas the Committee clearly indicated the intent to preserve its patentability.”

    If clause 15(3A) does not achieve what the Minister and the Committee wanted to, that would only seem to be more evidence that it ought to be deleted.

    Your suggestion about what Microsoft New Zealand is “advocating for software”

    is simply not correct. I think all anyone is asking for is that the normal rules for patentability apply without discrimination.

    As mentioned in the blog post:

    “all innovators should have the option to patent their inventions”

    Waldo [MSFT]

  18. Matt Adams says:

    NZCS does not appear to have made a submission on the Patents Bill before the Parliamentary Commerce Select Committee.

    InternetNZ submitted that "it is not currently possible to obtain a patent in New Zealand for software", referred to the disallowance of software patents in the European Union, and urged the Committee to pay close attention to the NZ Open Source Society for "detailed and credible arguments" as to why software patenting should be avoided.

    The NZOSS made 3 written submissions, according to Parliamentary documents. The first submission (21) favoured harmonisation with Europe. The second (21A) tabled an academic paper. The third (21B) was made well after submissions closed. It was sent to only 2 members of the Commerce Select Committee. Ironically, it criticised what it saw as multiple submissions made by others, criticised the practice of addressing issues raised by other submitters, and asked that its third submission be taken into account "in the interests of completeness and fairness".

    In the first of its 3 submissions the New Zealand Open Source Society endorsed the Committee's decision to follow Europe. Arguing against alignment with Australia, the NZOSS stated that "the selection of AU patent law as an example of divergence is curious considering that Europe has taken the same stance as NZ. Therefore we are in fact implementing a patent approach that is well supported by some of our largest trading partners". The NZOSS urged NZers to "hold to our principles side by side with the European Union".

    Catalyst IT made three written submissions to the Commerce Select Committee, according to Parliamentary documents. The first and second submissions (36 & 36A) claimed that software patenting would reduce innovation. The two submissions differed in the amendments requested by the company. The third (36B) was made after Catalyst IT made its verbal submission. It was sent as a letter to only Commerce Select Committee Chairperson Lianne Dalziel. The letter requested a meeting between the letter's author and Dalziel.

    In the first 2 of its 3 written submissions to the Commerce Select Committee, Catalyst IT claimed that software development is held back when other entities "register patents for software processes many years after the original work, simply because no-one else has yet registered that work due to its freely available nature."

    This submission does not demonstrate an awareness that patents are granted for inventions that are new at the time the patent is filed. If the work is already freely available it is not patentable. If a patent is granted on an invention that is not new then it is not enforceable.

    Catalyst IT does not address in its written submissions relevant changes effected by the Patents Bill such as the move to absolute novelty, examination for inventive step, examination on the balance of probabilities, prior user rights, and the ability to crowd source prior art searching. All of these measures reduce potential patent scope.

    In its verbal submission to the Commerce Select Committee, Catalyst IT claimed that software patenting would reduce innovation. The submitters raised patent threats received around election systems and electronic voting as an example. Catalyst IT has been less than forthcoming with support for its position. Subsequent attempts to obtain even the patent number from Catalyst IT have been unsuccessful.

    Matt Adams

  19. Guest says:

    For me, it is disturbing to see the haphazard addition of clause 15(3A) proposal without a call for submissions on software patents. If permitted to become law, removing a basic commercialisation choice will have a serious and negative impact on technology investment in New Zealand.

    I believe the Patents Bill should continue to support innovation involving software. That can be achieved by removing or amending 15(3A). There has been a suggestion that guidelines might fix it up eventually so that businesses know where they stand… but good laws don’t need ‘patching’ and if the first draft is anything to go by then guidelines could end up being a wild goose chase that won’t give businesses what they need.

    Nine years ago I came to New Zealand specifically to launch a new business which focused on delivering online marketing communications using an innovative proprietary software solution which I had developed. I was able to secure several millions of dollars in private funding because of the innovative and proprietary nature of our offering and chose New Zealand to launch the business for two fundamental reasons.

    Firstly, New Zealand is a mature marketplace with similar characteristics to any other industrialized global market, making it the perfect place to not only test new ideas but also to introduce products and services as a launching pad to the rest of the world – as has been successfully demonstrated many times before.

    Secondly, New Zealand offers innovators such as myself some degree of ‘controlled isolation’ in that I was able to continue the early stages of research and development efforts, complete beta testing and ultimately formally launch the business without the added threat of some ‘big boy’ stealing it from underneath me before I’ve even had the chance to ‘put the ball in play’. This makes New Zealand a highly valuable commodity not found in most other parts of the world.

    Furthermore, New Zealand is also now my home.

    All of this would not have been possible if New Zealand had not offered me the opportunities which encompassed the ability to patent our invention that involves software.

    I would never have chosen New Zealand if software patents were disallowed and furthermore would never have chosen to invest millions of dollars in setting up the business here, which has also in turn employed New Zealanders.

    I am perplexed as to why anyone would believe that the proposed section 15(3A) of the Patents Bill would have any beneficial effect. It seems to be a response to unproven arguments/fears without any economic analysis or consideration of evidence about New Zealand software patents.

    I’m a small guy in a big pond, but even I can do the math here… the little organization I helped found brought over seven million dollars of private overseas investment into New Zealand. The company has employed 20+ people for the better part of eight years now. It buys/sells goods and services from other Kiwi businesses and helps to generate tax revenue for the Government.

    The organisation also sells wares overseas which in turn brings money back to New Zealand that would have normally remained within the respective ‘local’ economy. ‘Exporting’ equally applies to software.

    The list of benefits goes on… so how is it that a process in which there was no call for submissions on software patents could result in 15(3A) of the Patents Bill which will no doubt have serious negative impact not only on the online/internet industry but other aspects of the overall economy. It is disturbing that while there have been many opinions there has been no evidence exposed to the public eye to illustrate that this discrimination against software will benefit New Zealand and New Zealand businesses, or that it will solve some kind of known problem.

    <continued below>

  20. Guest says:


    What is also apparent is that ‘patentability’ itself has a place and value in our fast paced and ever changing world. For example, even if I was not able to undergo the full process of patenting my new software idea on my own, I am offered the chance to sell my innovative idea to someone else who in turn would aim to pursue the patent and the benefits derived there from. This puts a ‘value’ on innovation – and without software patentability one would not be encouraged to innovate because such innovation would quickly become available to all who would freely exploit and profit from – all without any benefit to the inventor him/herself.

    It is also well known that patents (including software patents), provide a significant advantage when attracting and/or securing venture capital. In a country where there is already little offered to stimulate investment in emerging technology and development, and where access to investment capital is often slim to none, I am perplexed as to why anyone would feel that a move to eliminate software patentability provides any beneficial outcome.

    As I am certain you can appreciate, the continued ability to patent software is essential to the livelihood of many New Zealanders, allowing their businesses to compete in a global economy; win business amongst its competitors, big or small, in what is already a highly competitive world arena; and continue to provide the advantage of a competitive edge from larger corporations.

    If New Zealand is going to be a player in global innovation we need to seriously consider the negative impacts of allowing such a change to the law. If we want to nurture innovative thinking, attract foreign investment, and grow businesses that employ New Zealanders, then New Zealand must maintain ways in which to allows these and other initiatives to grow and flourish in a competitive landscape.

    My business has an online/internet focus so my interest in options to commercialise software is obvious. However, I would highlight that software is a ‘raw material’ in most industries now, so this should not be seen as just an online/internet industry problem.

    Consider an example like the evolution of the camera. When it was first invented, human operators manually pulled levers and measured light. Later mechanical gears and levers were used to perform the same task more smoothly… the next step was with electronics. Now the same functions are done with software. Hundreds of examples can be found of the same change in raw materials that are used – whether it is home appliances, radio programme scheduling, medical treatments, manufacturing lines, educational tools… all of them use software as a raw material now, so 15(3A) will have consequences for all of them if it becomes law.

    Yet the innovative functions might be identical. It simply makes no sense to have a law that an invention that uses software gets less protection than inventions that use other raw materials… the only logical outcome of that would be discouraging innovative use of software in this country. It would be a bit like saying that inventions that use iron or petrol as a raw material are no longer patentable in New Zealand.

    Businesses should be able to choose the best raw material to use without legal discrimination, and often that will be software. The fact that an innovative function happens to be implemented using software does not make it less innovative.

    Technology interest group member (name withheld by request)

  21. Kathryn Asare, BusinessNZ says:

    Paul Matthews describes the excerpts of submissions on this blog as a “minority view posed primarily by a small number of multinationals and their lawyers”.  As a quote from BusinessNZ’s submission was one of the excerpts, Mr Matthews should know that BusinessNZ does not represent “a small number of multinationals”.  BusinessNZ submissions are the result of consultation with and on behalf of a wide membership of thousands of New Zealand companies of all sizes. This consultation process resulted in firm recommendations on changing Clause 15(3A) to ensure compatibility with regulations in other jurisdictions.  

    Kathryn Asare, BusinessNZ

  22. Paul Matthews says:

    Paul A: EverEdge IP, the Intellectual Property firm? I guess I was somewhat surprised to see an anonymous submission to a public and otherwise transparent Select Committee process – I just can't see how a Select Committee could take a submission seriously when those allegedly behind it aren't prepared to put their name to it.

    Are you prepared to say how many companies are involved and their relative size at least?

    Waldo: It depends on your definition of "embedded computer programs". My personal view is that "inventions with a physical component that is in itself nonobvious" is an acceptable definition of embedded systems in this context – ie where software is part of a wider system that is novel.

    Kathryn: You appear to have missed the word "primarily".

    Having said that, your statement that BusNZ believes the new patent law to be "incompatible" with other jurisdictions, being their primary objection, in interesting. Were you aware that similar exclusions exist in India, South Africa, the Philippines and many other countries? Those countries certainly wouldn't view their sovereign laws as being incompatible with those that don't exclude, nor would the many other countries with varying criteria and acceptance of software patents in various forms. Put simply, different countries have different laws and few see compatibility with US law as being a requirement.

    Lastly, I just want to make it clear that we genuinely believe that several of the submissions presented by Waldo above have very valid points. There are very strong reasons in FAVOUR of software patents too, not least of which the business value in some cases. We have consistently held the view, however, that the balance between the good and bad elements of software patents falls very clearly on the side of "bad" for New Zealand.

    Paul Matthews

    NZCS Chief Executive

  23. Jonathan Lucas says:

    Hi all. Quite a few lengthy comments to read through. Here's another…

    Firstly, I note the comments of Joel Wiramu. He seems to be advocating that the patent system in general is flawed. He is entitled to that opinion, but in that case why attempt to single out one area of technology (i.e. software) above anything else?

    This obviously links to the important point that there still has not been put forward any compelling reason to treat computer-implemented inventions differently from any other area of technology. We're not talking about software (i.e. code) here, but computer-implemented inventions.

    Much criticism has been given to supposed 'obvious' patents being granted (e.g. Amazon one-click). However, the real issues there are:

    1) the standard of examination of patents, not the fundamental principles of patentability (btw examining for obviousness under the new Act in NZ will partly address this, subject to ability of examiners. Anyway, that is why all countries have patent invalidation procedures);

    2) lack of understanding of what a patent actually protects. Its not the broad meaning of the title. Its not even what described in the document. Its the very specific wording of the claims. So many 'obvious' patents cover things that are actualy more specific than they seem to.

    3) the date when they're judged. Amazon's one-click patent is still being disputed now but its actually many years old. Many of these kind of patents were actually inventive at the time, but hindsight means it is hard to fairly appraise them.

    It will be embarrassing for NZ if a law that has a significant affect on the prosperity of the country is changed based on a lack of understanding and poor reasoning.

    My final point is that clarity is key here. Everyone – law makers, patent applicants, attorneys and software industry – needs to know what is and what isn't patentable. Otherwise no-one knows where they stand and only the attorneys win (which many people contributing to this blog won't want). As a patent attorney, I can safely say that Clause 15(3A) and the current guidelines certainly do not provide that clarity.

    Jonathan Lucas

  24. Matt Adams says:

    I made a comment above that NZCS does not appear to have made a submission on the Patents Bill before the Parliamentary Commerce Select Committee.

    It appears Mr Matthews wrote to Hon Simon Power on 15 April 2010 on behalf of the NZCS. The letter can be viewed at this link…/20100415SoftwarePatents.pdf

    In the letter Mr Matthews states that the NZCS "position can be viewed as truly independent and free from influence". This is great to see.

    He goes on to make some comments on damage to innovation. He states that "[g]iven the nature of computer software, patents have the potential to (and in many cases have) significantly stifle innovation".

    What does he mean by "stifle innovation"? What instances of stifling innovation was he referring to in his letter to the Minister? Can he provide some examples in New Zealand of stifling innovation?

    Matt Adams

  25. Paul Matthews says:


    The majority of the damage caused by software patents has been in overseas jurisdictions – the idea being we would rather the issue was dealt with in New Zealand BEFORE we saw the same issues and went down the same path here.

    Having said that there are several examples of New Zealand companies that have been significantly negatively impacted by what they would see as malicious software patent claims.

    For example I'm not sure how much of the issues Orion Health have faced are public so I won't go into detail, however the innovation and commercialisation of their products have been stifled at least twice by software patents.

    Put simply, it would be near impossible for innovative kiwi software firms to create software without breaching some of the hundreds of thousands of software patents in existence resulting in a significant potential liability.

    Paul M.

  26. Sumpter says:

    The comments here are entertaining but that’s all.  The conjecture from the NZCS and others does not make the case for law reform.  Talk of “wealthy multinational companies” using the New Zealand patent system to smother local software development is naïve propaganda.  I’d be interested to see commentators put the extravagant language to one side and offer some hard facts and analysis:  

    – Who in NZ has been stopped by a NZ software patent from commercialising innovation?  When? Why?  

    – NZ is a trading nation.  Our wealth – and hence our ability to look after each other and our environment – requires “best practice” commercial law which supports our exporters.  Why exactly should NZ change its patent law to isolate the country from the rest of global community we desperately need to be part of?


  27. Doug Calhoun says:

    I am a retired patent attorney/lawyer who still writes in journals and a newsletter as well as to select committees and government departments on intellectual property law reform.  

    Recently I found and reread a paper I wrote that was published in Law Commission Report # 13 in 1990.   On page 86 of that report I said:

    “One cannot obtain a patent for a mere principle or theorem.  However, it is possible to obtain protection for a principle or theorem which has been been applied in some way industrially.  The way in which this has been interpreted in respect of computer programs is that one cannot obtain a patent for a computer program per se but one can obtain a patent which claims a program which controls an industrial process or machine.  Thus, for example, a program for operating a pulp and paper mill to its peak efficiency would be patentable.  A computer game would not be.”

    That statement, I believe, still accurately defines what is eligible subject matter for a patent – before a patent application is examined to determine if the claimed invention is new, not obvious and useful.  The select committee itself (on page 5 of the commentary to the reported Patents Bill) said, “Under the Patents Act 1953 computer programs can be patented in New Zealand provided they produce a commercially useful effect.”

    However, the Patents Bill now says that a computer program is not a patentable invention.  Given the existing state of the law, does this mean what has been the law since the 1953 law came into force, or does it mean something else?  And if it means something else, what does it mean?  IPONZ was given the hospital pass of answering these questions.  

    The fault lies with the select committee.  It came to the conclusion that patents for computer programs do not promote innovation, but patents for imbedded software do.  But it did not say why they thought this or how they reached that conclusion.  The only clue they gave as to what they meant and how you might distinguish the two was a footnote defining embedded software as “ computer software which plays an integral role in the electronics it is supplied with (e.g. cars, pacemakers, telephones and washing machines).”

    The debate about the economic value of patent systems is not new.  It probably reached its peak in the mid nineteenth century.  Many modern critics either ignore this history or are not aware of it.  In either case they are doomed to repeat it.  There are many economic arguments for and against patents.  Many who join the debate choose the arguments that best support their point of view and do not let on that there are other arguments.  While it is true that one argument suggests patents promote research and development, the more complete argument is that they promote investment in R & D because patent exclusivity is an incentive to invest in taking good inventions, applying them in innovative ways and growing them into businesses.  The post by the unidentified entrepreneur above is testament that there are real live examples of how the theory that patents promote investment in innovation works in New Zealand.

    Critics of patents exaggerate both the breadth of patent scope and the actual use of patents in suing someone for infringement.  When you sue someone for infringement only three things can happen – and two of them are bad.  The one good result is that the court finds a patent to be valid and infringed.  If the patent is found to be invalid or not infringed the patent owner’s whole patent investment may be lost.  That is why there are so few actual law suits for patent infringement in the US and why there have been virtually none in New Zealand.

    Patenting strategy is determined within businesses.  Under the existing law many businesses have chosen not to seek patents.  That is a business decision.  But if the patent ban remains the inability for businesses to choose to seek patents will be determined not by the businesses themselves, but by the government.  

    Earlier this month I attended a lecture by Jeff Matsuura, a US lawyer who is a visiting Fulbright scholar at the law faculty of the University of Otago.  The lecture was given at the Ministry of Innovation and Science offices in Wellington.  His topic was how US businesses are using their patents in innovative ways.  He described many arrangements involving “open innovation” where businesses did not try to either develop or use inventions solely within house but rather entered into many types of pooling arrangements as well as licensing in or out their inventions.  He mentioned that the open source software industry in the US holds many US patents that are pooled in such an arrangement.  He agreed with the observation that all of these strategies involved the use of granted patents.  The aggressive position of those opposed to patents for computer programs in New Zealand may well be cutting themselves off from business strategies that are used by the open source software industry in the US.

    Finally, although many of the opponents to software related patents in New Zealand paint Microsoft as the bogeyman in the story of patents it is worth noting that Microsoft in the US was found to have infringed a US patent of a minnow Canadian software developer i4i Limited Partnership.  The patent claims an invention involving certain HTML functionality.  Microsoft was ordered by the court to pay $M 300 in damages and to remove the infringing code from the Word product it was selling.  An appeal on a fine point of law on that case was argued in the US Supreme Court this week.  A blow-by-blow description can be found at:…/id=16525

    i4i are a small innovative company whose only defence against having their software usurped by the industry giant was their patent.  Those in favour of the ban on patents for computer programs might want to consider if they are not cutting their noses off to spite their faces.

    Doug Calhoun

  28. Waldo says:

    Hi Paul (NZCS)

    I appreciate your on-going dialogue on this issue.

    1) What actual problem with the current law needs clause 15(3A) to solve it?

    You mention that you believe “the balance between the good and bad elements of software patents falls very clearly on the side of ‘bad’ for New Zealand”.

    If it is as clear as you suggest, there must be abundant evidence of harm.

    However commentators here and elsewhere have pointed out that there seems to be no firm evidence of any “bad” effect of patents for NZ computer-implemented inventions. There appear to be a number of examples of the “good”, which you appear to acknowledge, yet there are apparently no tangible examples of “bad” whatsoever.

    If you do have any examples of the “bad”, it must then also be considered whether these issues can be remedied by the patent quality improvements in the Patents Bill, rather than by a discriminatory exclusion.

    I may be useful if you can provide examples of harm that NZ patents for computer implemented inventions have caused to those who object to them, and also provide your views of whether the patent quality improvements in the Patents Bill would help to remedy those examples (if any).

    It's not even clear if the example you have now mentioned relates to NZ patent.

    Overall it seems to me there is strong evidence that there has been no harm from NZ patents for computer implemented inventions: Many of the people who asked for a restriction were clearly not aware that patents for computer implemented inventions are already law. How could they not have noticed, if those patents are as harmful as they claim?

    2) Is clause 15(3A) clear?

    You have put forward one possible interpretation of clause 15(3A) and the draft Guidelines, but I think it is fair to say both are ambiguous – and there is absolutely no need for them to be ambiguous.

    Based on your analysis, clause 15(3A) and the draft Guidelines do not implement the statements of the Minister or the Commerce Select Committee, irrespective of how one might wish to define ‘embedded software’:

    “[C]ompanies investing in inventions involving ‘embedded’ computer programs should be able to obtain patent protection for these inventions. The committee and the Minister accept this position.”

    For context, to ensure there is no confusion about what this means, the Commerce Select Committee’s report in the Patents Bill said:

    “we are aware of New Zealand companies who have invested in a significant number of software-related inventions, involving embedded software. […] We received advice that our recommendation to include computer programs among the inventions that may not be patented would be unlikely to prevent the granting of patents for inventions involving embedded software.”

    If your interpretation of clause 15(3A) is correct, then it would seem the advice the Commerce Select Committee relied on when inserting the provision is wrong, the Minister’s statement has not been honoured, and clause 15(3A) does not achieve its intended purpose.

    Only one thing seems to be clear in all this – that clause 15(3A) is unclear. Unclear law is bad law.

    Waldo [MSFT]

  29. Dave Lane says:

    Waldo, Doug, et al.,

    I think anyone with even a vague familiarity with market economics will agree that monopolies are undesirable for everyone but the monopolist (and sometimes even for them). They are a negative force for society, and are a detriment to the greater good.

    Patents – which are nothing more or less than government granted monopolies – are seen as a justifiable exception to that anti-monopoly rule because of the *historical* (pre-digital age – back in the "Age of Scarcity" rather than our current "Age of Abundance") thinking that a *limited* monopoly advantage created a 'gradient of inequality' that provided some people with an incentive to publicise and commercialise their innovations. Leaders at the time wanted to ensure that this *uneasy* balance was subject to review, in the event that the balance was disrupted in favour of the monopolist to the detriment of society.

    I think it's very very clear from our testimony *as software developers* that software patents provide us with no incentive. Moreover, the specific expression of our creative work, like that of authors, musicians, artist is already "protected" for the purpose of the greater good, by the legal instrument (another but far more limited government granted monopoly) of copyright.

    As such, we have made the case that the balance of patents vs. the greater good has been well and truly upset in favour of monopolists (witness the increasing disparity of wealth, particularly in patent-mad countries like the US, where the wealth gap is absurd and growing), and that software patents are not only unnecessary, but undesirable.

    Ultimate, Waldo, Matt, and the Chapman Tripp bunch: you're lawyers, not software developers. You're welcome to your opinions, but we software developers don't want software patents, so we should really care what you have to say. To date, it appears that our kiwi government policy makers, to their credit, have not been impressed with your plaintive protestations.

    Luckily, the legislative principle excluding software from patentability has already been established.

    You're simply speaking out of disingenuous self interest, and to the extent that you represent software development industry, you only represent a tiny (albeit monopoly exploiting and therefore well capitalised) segment.

    Dave Lane

  30. Waldo says:

    Hi Dave, thank you for your comments.

    Your argument seems to rest on an assumption that a patent is a market “monopoly”. It would be wrong to assume that a patent is (or even leads to) a market “monopoly”.

    Clear thinking is needed here. Like many words in the English language, the word “monopoly” has different meanings depending on the context in which it is used.

    It is true that patents are a legal “monopoly” (that is, an exclusive right like other property rights). However that is an entirely different concept from a market “monopoly” and therefore does imply the economic consequences you mention. No matter how many lawyers (or anti-patent lobbyists) describe patents as a "monopoly", the simple fact is that the vast majority of patents provide no market power whatsoever.

    The Governments of Australia and New Zealand recently recognised as much, saying as recently as February this year that, “[New Zealand and Australia] recognise that a patent does not necessarily confer market power.”(Reference: New Zealand-Australia Closer Economic Relations Investment Protocol)

    Even if you were correct, your analysis still does not answer the fundamental questions of exactly what inventions (if any) clause 15(3A) would exclude, and what actual harm (if any) the last 15 years of NZ patents for computer implemented inventions have actually caused to anyone.

    If any actual harm can be proven, the circumstances would still then need to be examined to determine whether quality improvements in the Patents Bill would help to prevent that harm, and any residual harm would need to be weighed against the benefits.

    Replacing a law that works with an unworkable law cannot be justified by unsupportable assumptions about market effects.

    Waldo [MSFT]

  31. Dave Lane says:

    If ambiguity in legislation was grounds for denying it all together, then I suggest that we would have precious few laws at all. Why not specify that what constitutes "software" is determined on a case by case basis by a jury of professional software developers drawn at random from those identifying as such in the electoral rolls. Given that there are, on average, fewer than 80 software patents granted in NZ per year, that shouldn't be too onerous, should it?

    By the way, how does IPONZ work out all the other many many exclusions to patents? Surely there are some prickly edge cases among that vast swath of creativity that is only eligible for copyright within the current patent regime, no?  I guess we have to trust the intelligence and judgement of IPONZ assessors. Yes, that makes me nervous too.

    Dave Lane

  32. Dave Lane says:

    And Waldo – it's not about the harm software patents *have* caused. It's about the liability they represent for all kiwi software developers in the future.

    You and I both know that Bill Gates knows Microsoft would never have become what it has if software patents were used in the US prior to 1991 the way they are now… and by Microsoft no less. Doubly ironic, isn't it, that Microsoft with all it's resources to check for patent infringement in each line of code it writes in MS Office, is still getting its ass handed to it by a stroppy – but not very innovative or deserving – little Canadian company?

    Dave Lane

  33. Waldo says:

    Hi Dave

    Yes, I do think citizens are entitled to clear laws, especially when it’s easy to achieve that.

    A vague fear about what might occur in the future if we keep the law as it is doesn’t seem to be a compelling reason to deliberately pass an unclear law that on one interpretation changes nothing (except make things less certain).

    Waldo [MSFT]

  34. Dave Lane says:

    I predict that in the coming months, your well paid counterparts elsewhere in the world will have their hands full sticking fingers into the software patent ***, as the ridiculousness of software patents and the huge liability they represent becomes clear to software developers and governments everywhere in the world.

    As I'm sure you know, my counterparts worldwide are becoming better organised and better informed. We're helping them with their arguments. I don't think that the pro software patents position is actually defensible – none of the arguments you've presented justify government granted monopolies where they don't promote innovation. As you well know, the Select Committee was convinced. Unanimously.

    By the way, you still haven't answered my question in a previous comment – you're concerned about the definition of software (actually, you're concerned about edge cases, of which there are few). There are already plenty of grey edge cases, and yet they're not enough to make everything patentable. How can patent assessors be expected to differentiate between other non-patentable 'ideas' or 'expressions of ideas', and how do they differentiate between them.  You can't, for example, patent a discovered mathematical relationship. Maths, if I'm not mistaken, is unpatentable. Who makes the call? What about story lines? Melodies? Combinations of instruments? Beats? Drawing styles? Why hasn't that either resulted in everything under the sun being patentable (which would cause the economies of the world to grind to a halt, to the detriment of everyone but lawyers like you), or nothing being patentable (which seems to work quite well in the various jurisdictions)?

    Personally, I just think your pro software patent arguments are painfully weak. You clearly want to protect software patents in NZ because you know the way the trend will go if you let one country break from the herd. If countries start to fall like dominoes (which is sure to happen), similar to the current trend of rebellion in the middle east, how then will Microsoft be able to continue building up its patent "armoury" for a time when your monopoly is really up against the wall (it's not far off) and playing patent chicken is your only hope for anything like survival. I think the good olde days are long behind you – MS' slow downward spiral is accelerating… as anyone can see.

    Dave Lane

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