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On Your Marks

19 Aug 2008

Patents Bill (Finally) Introduced

After waiting the best part of two decades, the long overdue revision of New Zealand's antiquated patent legislation took a monumental step forward in July with the introduction of the Patents Bill 2008 to Parliament. The Bill proposes significant changes to our patent system and will for the most part bring New Zealand into line with its major trading partners.

While the Bill introduces a wide variety of changes, some key issues are summarised below:

Absolute novelty: The Bill removes New Zealand's current 'local novelty' requirement for patentability, and replaces it with 'absolute novelty' - meaning that an invention will not be considered novel if it has been disclosed or performed anywhere in the world. This fundamental change brings New Zealand into line with the great majority of countries, and recognises that innovation is a global matter. New Zealand cannot operate in a vacuum.
Creation of Māori Advisory Counsel: On the registrability front, the Bill creates a Māori Advisory Counsel to advise the Commissioner whether an invention has been derived from traditional Māori knowledge or materials, and to advise if commercialisation would be contrary to Māori values. Similar provisions are found in New Zealand’s plant variety rights and trade mark legislation.
Exceptions to Patentability: While this will not be any significant change from current law, probably likely to spark the most active debate is the public policy exclusion of patentability of medical treatment and diagnosis of humans.
Re-examination: The ability to oppose a patent pre-grant will be removed, although in its place will be a facility allowing any person to request the re-examination of a patent by the Commissioner of Patents on the basis of lack of novelty or obviousness.

Without following any particular jurisdiction, there are recognisable elements of the UK, Australian and European regimes in the proposals. Importantly, though, the Bill will create a patent procedure that is, overall, consistent with the general approach taken by our major trading partners, meaning a greater understanding and (hopefully) greater international consistency for international patentees. At the same time, however, the Bill has not forsaken local issues for the sake of international uniformity - as shown by the creation of the Māori Advisory Committee.

The Bill has not yet been before Select Committee, and we expect there to be vigorous debate with the possibility of significant changes being proposed.

With a general election due in November this year, and patents not being renowned for their vote-attracting qualities, it is unlikely we will see much substantive progress with the Bill until 2009. But having waited twenty years, one more year is hardly likely to be noticed.