Landmark patent legislation passed by Parliament

Landmark patent legislation passed by Parliament

Legislation which will have a profound effect on New Zealand’s patent law completed its passage through Parliament last night. The Patents Bill passed its third and final reading by 117 votes to 4.

Frank Callus, a principal of patent attorney firm Henry Hughes, said that the new legislation was the first major overhaul of the New Zealand patent system for 60 years and many of the changes it brings will be welcomed by New Zealand businesses for harmonising New Zealand’s patent law with other countries. The current patent statute, the Patents Act 1953, is closely based on UK legislation which was passed in 1949 and repealed in 1977.

“The Patents Bill languished on the Parliamentary Order Paper for five years as politicians and officials grappled with how best to implement the Commerce Select Committee’s recommendation to restrict the patentability of computer programs in response to submissions from proponents of open-source software, while ensuring that software embedded in hardware remains patentable in response to calls from New Zealand and overseas businesses.”

“The political standoff over software patents was eventually resolved by an amendment to the Bill which excludes computer programs ‘as such’ from patentability. This exclusion is modelled on European patent legislation and is intended to exclude alleged inventions where the inventive contribution lies solely in being a computer program.”

“Under the new Patents Act, a computer program involving only conventional computer programming steps is unlikely to be patentable. On the other hand, a computer program which improves the way in which a product works should be patentable, for example, a computer program embedded into a chip in a washing machine which operates the machine in a new and better way.”

The new Patents Act will also contain a number of other exclusions from patentability including: human beings and biological processes for their generation; a method of treatment of human beings by surgery or therapy; a method of diagnosis practised on human beings; and a plant variety. Plant varieties are currently able to be protected under both the Patents Act 1953 and the Plant Variety Rights Act 1987.

The new Patents Act will also exclude an invention from being patented if the commercial exploitation of the invention is contrary to public order or morality. In deciding whether to apply this provision, the Commissioner of Patents may seek advice from a Maori advisory committee set up to advise the Commissioner on whether an invention claimed in a patent application is derived from Maori traditional knowledge or from indigenous plants or animals and, if so, whether the commercial exploitation of that invention is likely to be contrary to Maori values.

An advisory committee was established under the Trade Marks Act 2002 to advise the Commissioner on whether the proposed registration of a trade mark that is, or appears to be, derivative of a Maori sign, including imagery or text, is offensive to Maori. An advisory committee for patents was recommended by the Waitangi Tribunal in its report on the Wai 262 claim.

The Patents Bill is set to receive Royal assent in the next few days to become the Patents Act 2013. The key provisions in the Patents Act 2013 are expected to come into force on the first anniversary of the date on which the Bill receives Royal assent.

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