New Zealand's current Patents Act 1953 does not provide for a pharmaceutical extension of term – nor is such an extension proposed in the new Patents Bill 2008 which is presently before Parliament. However, with a US-NZ Free Trade Agreement (FTA) imminent, things may be about to change.
In February 2008, the United States announced that it would attempt joining negotiations with four Asia-Pacific countries: New Zealand, Singapore, Brunei and Chile – the "P4" – with a view to "gatecrashing" their existing Trans-Pacific Strategic Economic Partnership.
Whilst in theory, the opportunity to trade freely with the US is a boon for the P4 countries, any such multilateral FTA will inevitably come at a price. New Zealand, for whom remaining "nuclear free" tops their list of non-negotiables, will undoubtedly need to yield in other areas if they are to reap the benefits of a free trade partnership with the US.
With this in mind, the US government publishes an annual report entitled Foreign Trade Barriers in which it particularises laws and regulatory mechanisms in foreign countries that are considered "significant barriers to US exports". In this document, US pharmaceutical companies have expressed concern about NZ's lack of pharmaceutical extension and its prohibition on patents for methods of medical treatment.
Accordingly, in terms of New Zealand's bargaining chips, a pharmaceutical extension is likely to be high on the list. This may see NZ patent law aligned for compatibility with 35 USC 155 and 156, so that US "Big Pharma" are able to maintain their NZ patents for longer, and in turn, make greater profits. The trade-off, of course, is that the NZ consumer, who would then be required to pay more for healthcare, is afforded greater access to the US marketplace.
In September 2008, Washington announced that the US was to begin negotiations with the P4 "ASAP", and the first round of talks are already scheduled for March 2009. However, in the short interim period, both the US and NZ have changed government – and it is feared that the incoming Obama administration may be somewhat less FTA-friendly than was their predecessor. On the other hand, and notwithstanding the nuclear issue, NZ offers relatively few political impediments to an FTA by virtue of its progressive environmental and labour policies.
New Zealand had previously decided against a pharmaceutical extension on the basis of its economic impact on NZ consumers. However, with a potential US-NZ FTA at stake, it is possible that the Patents Bill 2008 may yet undergo one or two changes before it is passed into law.
Watch this space.
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