What do you do when you’re a small country with a technology industry convinced that innovation requires the banning of software patents, but you’ve signed an international treaty that in theory obliges you to make software patentable? If you’re New Zealand, you simply declare, in a historic and long-debated bit of just-passed legislation, that software isn’t an invention in the first place.
As a result, New Zealand’s new Patents Bill, passed today, guarantees that patents of pure software—that is, software uncoupled from some dedicated new piece of hardware—cannot be granted in New Zealand.
New Zealand’s seemingly zany declaration is not without precedent. In 1998, the head of the UK Patent Office commented that European law says that a piece of pure software is not technically an invention, or even a piece of “technology,” and it would have to be one or the other (or have an “industrial” application) in order to run afoul of the part of international law known as the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).