7. Business Methods and Software
34. Fourteen submissions commented on the patentability of computer software and business methods. Submissions, except those from Pharmac and Adam Warner, were generally in favour of computer software and business methods being patentable in some form. AJ Park submitted that the software and finance industries should be treated the same as other industries in respect of patents.
35. Opinions varied on whether claims to computer software and business methods had to be qualified in one way or another. Peter Andreae and the Law Society noted the need for computer software and business methods to have a "technical character" or "technical innovation" to be patentable.
36. Other suggestions for qualifying the patentability of software and business methods included the need for business methods and software to be computer-implemented (Telecom); a requirement to possess a "technological innovation" as well as being industrially applicable (Law Society); a requirement to show technical knowledge and an artificially created state of affairs (ZESPRI Group Ltd); or embody a commercially useful effect (Auckland Uniservices Ltd).
37. Others, such as AGCARM, AJ Park and the NZIPA commented, however, that patent applications for computer software and business methods should not be treated differently compared with other types of inventions, particularly if such applications were being examined for absolute novelty and inventive step prior to a patent being granted.
38. A number of submissions commented on the need for IPONZ adequately to resource patent examination to ensure a quality examination in respect of business methods and computer software inventions. Telecom noted that lack of appropriate expertise at IPONZ was not a sufficient ground for restricting patent applications for these types of inventions. Telecom also noted that controversy to date surrounding business methods in the US had highlighted the difficulties of examining such patent applications due to the lack of resources and not that such inventions were inherently not patentable.
39. AGCARM commented that IPONZ needs to employ appropriately qualified and trained patent examiners. Peter Andreae noted the need for IPONZ to employ patent examiners with practical experience of programming and a good qualification in computer science. The NZIPA commented on the need for IPONZ to provide patent examiners with access to non-patent prior art if they are adequately to examine patent applications for computer software and business methods. AGCARM also suggested greater examination liaison with IP Australia to ensure a consistent quality of examination of computer software inventions.
40. A number of submissions, including those from Peter Andreae, Telecom, Adam Warner, Law Society and the NZIPA, were against mere schemes or plans, mathematical algorithms and other abstracts concepts being patentable, although suggestions varied on how this could be best achieved within the Act. Others argued that such things should be patentable provided it could be demonstrated that they were inventions (Crop & Food Research Institute) or created an "artificial state of affairs" (ZESPRI Group Ltd).
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