4. Exclusions from Patentability
11. At present there is only one specific or "statutory" exclusion contained in the Act. This is for inventions whose use would be contrary to morality. In addition, the courts have interpreted the term "manner of new manufacture" as excluding such things as mathematical algorithms, bare principles or discoveries, mere schemes or plans, aesthetic creations, and methods of medical treatment of humans. These exclusions are known as "judicial" exclusions.
12. The Royal Commission on Genetic Modification recommended that the Act be amended by adding a specific exclusion from patentability of human beings and the biological processes for their generation, in line with s18 of the Australian Patents Act 1990. The government subsequently adopted this recommendation as part of the overall response to the Royal Commission's report.
13. The submissions which considered the subject of exclusions from patentability, were split evenly on the subject, with half advocating no exclusions at all other than for human beings and processes for their generation. The remainder advocated that some subject matter be excluded from patentability, either by specific exclusions, or by retention of the "manner of manufacture" definition of invention, or both.
14. Those submitters that advocated that there be exclusions from patentability generally supported retention of the "contrary to morality" exclusion and the current "judicial" exclusions. Greenpeace, ARENA and a number of individuals argued that plants, animals, seeds, and parts of plants, cells and plant DNA including genes be excluded.
15. Pharmac argued that inventions where prevention of commercial exploitation is necessary to protect human, animal or plant life or health or to avoid serious prejudice to the environment should also be excluded from patentability. Pharmac also advocated that business methods and software be excluded. Pharmac also suggested that excluding particular areas from patentability in New Zealand would have little effect on the incentive to innovate in New Zealand. It was argued that the returns from overseas markets where patents in those areas are available would be sufficient to act as sufficient incentive for New Zealand inventors.
16. Some submitters from the information technology sector suggested that business methods and software should not be patentable. These submitters argued that innovation in this sector relied on open access to the results of free and open source software development. The granting of patents in these fields, it was suggested, may stifle rather than increase innovation.
17. The submissions that opposed any exclusions from patentability (other than for human beings and processes for their generation) argued that any exclusions might have the effect of stifling innovation. It was suggested that if inventions in particular fields were not patentable in New Zealand, then there would be a reduced incentive for local inventors to work in these fields.
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