It is difficult to get a handle on precisely what the New
Zealand Government is thinking with regard to patent law reform. In
the past year, the Patents Bill 2008 has
"yo-yoed" on the Parliamentary Agenda from number 55, up
to 5, down to 25 – and is now sitting pretty at #2.
Parliament next sits on 12 February 2013. Watch this space...
The Patents Bill 2008 has already had two Parliamentary
Readings (in 2009 and late 2012) – and is now before a
Committee of the Full House – one of the final stages in its
passage into law. In other words, Parliament now meets to thrash
out the "final" content of the Bill; presumably,
this will happen when Parliament next meets.
However, two things immediately stand out – and they are
somewhat inter-linked. Firstly, why now? – and secondly, is
the "final" content of the Bill a fait
As we've noted in previous articles, the content of the
Patents Bill is – or more correctly, will be
intimately linked with the final form of the Trans-Pacific
Partnership ("TPP") Free Trade Agreement presently under
negotiation by Australia, Brunei Darussalam, Chile, Canada,
Malaysia, Mexico, New Zealand, Peru, Singapore, the United States,
Recently, the negotiating parties set themselves a goal of
finalising the agreement by October 2013. With this in mind, why
try to push through the Patents Bill now? Wouldn't it
make more sense to wait until October – until such time as
New Zealand's obligations under the TPP are known, before
finalising the Patents Bill? The status quo seems like a
bit of a "cart leading the horse" scenario.
For instance, there are several key patentability issues that
are presently drafted "one way" in the Patents
Bill (or are even absent) that one suspects will appear
"another way" in the final form of the TPP. The
patentability of computer software, a patent term extension for
pharmaceuticals, clinical data exclusivity, patent linkage, and the
patentability of methods of medical treatment of human beings (to
name but a few) are all areas in which New Zealand's current
position (as per the Patents Bill 2008) is presently at
odds with the legislation of the United States (which, one
suspects, will be closely mirrored in the final form of the
Recently, the fifteenth round of TPP negotiations concluded, in
Auckland. Given the October 2013 "deadline" for
finalising the deal, one would hope that the New Zealand Government
now has a "99.9%" impression of what their eventual
obligations will be under it. Moreover, one should not doubt New
Zealand's commitment to the TPP (the Government has previously
acknowledged that, for instance, free access to the lucrative US
dairy industry is likely to come at a price). Perhaps then, when
the Patents Bill comes up for discussion next week in
Parliament, it won't so much be a case of, for instance,
debating the form of the "software exclusion" as it may
be a case of "listen, fellas, this is what we're in for
under the TPP – take it or leave it".
The TPP – and with it, the final form of New Zealand's
new Patents Act, is likely to impact significantly upon
many of our clients – especially those dealing in
pharmaceuticals and software. For this reason, we will continue to
keep a close eye on developments over the next week and beyond.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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