Continuing Progress Toward New Zealand's New Patents Act
This article reports continuing progress toward New
Zealand's new Patents Act.
Following its introduction before the House of Representatives
on 9 July 2008, the Patents Bill then survived a general
election in November before having its first Parliamentary reading
on 5 May 2009.
As summarised below, the Bill is essentially a hybrid
of the current Australian and United Kingdom legislation. Most
proposed changes reflect public opinion and global standards
– and will likely be embraced, whereas others may be more
controversial and may slow passage of the Bill through the
House.
The Bill is essentially as per its initial exposure
draft, with the significant addition of a statutory Experimental
Use Exception to patent infringement. This had been the subject of
a separate government review, but given the interim period, now
appears to have been consumed within the broader reforms.
A brief synopsis of some of the salient features of the
Bill is summarised as follows:
Replacement of the current local novelty standard with absolute
novelty.
Examination will be extended to now include an evaluation of
inventive step.
"Whole of contents" objections based unpublished
applications having an earlier priority date may be made in respect
of both novelty and (unlike Australia) inventive step.
A claimed invention must be a "manner of
manufacture", within the meaning of s.6 of the Statute of
Monopolies, and "useful", insofar as it must have
"specific, credible, and substantial utility".
A patent may be refused if its "commercial
exploitation" (possibly narrower than mere "use") is
contrary to public policy or morality.
Inventions derived from Māori traditional knowledge,
or whose exploitation would be considered contrary to
Māori values are denied protection.
New IDS requirements will oblige Applicants to disclose the
results of any documentary search conducted in any foreign Patent
Office in respect of a corresponding application. Sanction for
failure to comply is forfeiture of the right to perform post-grant
amendment to overcome any prior art so uncovered. The obligation
applies until grant and is directly analogous with the recently
repealed Australian law in this respect.
Methods of diagnosis will be statutorily excluded from
patentability, irrespective of whether such method is part of a
surgical procedure. Other specific exclusions include human beings,
biological processes for their generation, therapeutic, surgical
and diagnostic methods for their...
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