Is software patentable in New Zealand?

The short answer is that the New Zealand Patents Act 2013 specifically excludes software from being patentable subject matter. However, this is not a blanket ban: patents are available for new software that produces a technical, physical, or functional effect.

The core issue is whether the invention is a "computer program as such."

The Statutory Exclusion and The Actual Contribution Test

New Zealand’s law is modelled closely on the approach taken in the United Kingdom and Europe, providing an explicit exclusion in the Act itself.

Section 11(1) of the Patents Act 2013 states that a computer program is "not an invention and not a manner of manufacture." This exclusion is limited by Section 11(2), which states the ban applies "only to the extent that a claim... relates to a computer program as such."

The key statutory test for a New Zealand patent examiner is whether the "actual contribution" made by the alleged invention "lies solely in it being a computer program".

This "actual contribution" is identified by considering the substance of the claim (rather than its form) and how the invention solves a problem. If the only contribution is the execution of a method within a computer, the patent must be refused.

Patentable vs. Unpatentable Software: The Examples

The Act is clear by providing two contrasting examples under Section 11(3) to illustrate the 'actual contribution' test:

Category	Example from the Act	Key Principle
Patentable	A method implemented in software for operating a washing machine in a new and inventive way.	The actual contribution is a new way of operating the machine (a technical, external effect), with the software being merely the means of implementation.
Unpatentable	A process implemented in software for completing a legal document by asking the user questions.	The actual contribution lies solely in it being a computer program; it is merely automating an abstract, legal, or purely intellectual process.

It's important to remember that simply automating a known process does not make it patentable.

Why the New Zealand Approach Can Hinder Innovation (A Personal Experience)

While the New Zealand law provides certainty, it can be too restrictive when dealing with novel, complex software that solves massive data problems.

I once invented a program that automatically detects new trade mark applications that conflict with my client's prior registrations. My client had 25,000 registrations, so checking them was literally impossible for a human to do. I didn't bother doing business in New Zealand because there were no clear legal means to discourage copycats.

My experience highlights the gap in the New Zealand system. Your invention's utility was purely economic and data-driven: it provided a crucial function—trademark watch and infringement prevention—that was impossible at a human scale. In New Zealand, an examiner could argue that the core contribution is merely the logic or algorithm for comparison, which is classified as a "computer program as such" because the output is just the display of information to a user. It doesn't control external hardware like a washing machine.

However, I did get an innovation patent in Australia for the invention in 2012. The software cost me a lot to develop back then. The patents system thereby encouraged innovation which helped the Australian economy and stopped a considerable amount of infringement.

This demonstrates the key difference. The Australian system, by focusing on the "artificial state of affairs" and "economic utility", was able to recognise the value of my innovation at scale. It accepted that the software was solving a complex practical problem (overcoming human capacity limitations) with a technical solution, thereby rewarding the significant investment you made in the development.

In essence, while the New Zealand system is clear and stable, it generally requires an invention to have a more tangible, external technical effect to escape the "software as such" exclusion. This conservative approach risks penalising genuinely useful innovations in the fields of business intelligence, data processing, and large-scale automation.

Key Takeaways for New Zealand Patent Applicants

• Focus on the Technical Effect: If possible, claim a process that involves or improves a piece of external hardware (like the washing machine example).

• Internal Improvement: If no external hardware is involved, demonstrate that the software causes the computer to operate in a new way or run more efficiently and effectively as a computer (an internal technical contribution).

• The Thaler Precedent: Be aware that the inventor must be a natural person. For AI-generated software, the human who directed the AI or solved the problem remains the legal inventor.