New Zealand's International Obligations
New Zealand is party to a number of treaties and conventions which impose requirements on New Zealand in regard to patent law. Some of the more important of these, and the limits they impose on exceptions to patentability under the Patents Act, are outlined below.
Paris Convention for the Protection of Industrial Property
The Paris Convention requires that states which are parties to the Convention must grant to nationals of other states, the same level of protection in respect to patents, trade marks and designs that are enjoyed by their own nationals. Effectively this means that any provision in New Zealand patent law granting special rights to Maori, for example, would need to provide the same rights to nationals of other member states. Any exclusions to patentability would therefore need to be applied to all patent applicants, including those of other nationals.
TRIPS Agreement
The WTO Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement which came into force in 1995, permits a specific exclusion from patentability for plants and animals (except for micro-organisms). This exclusion is due to be reviewed and some parties to the Agreement may seek its removal. The New Zealand Government has yet to consider this issue and is interested in Maori views. A number of general exceptions are also permitted, including an exception for inventions which are contrary to morality or public order. As discussed previously, section 17 of the Patents Act 1953 currently reflects the New Zealand exceptions permitted by the TRIPS Agreement.
As with the Paris Convention, the exceptions permitted under the TRIPS Agreement are also subject to overriding requirements that nationals of other member states should not be accorded treatment any less favourable than that granted to New Zealand nationals. In effect, this means that the Commissioner of Patents may not deny an application for a patent from another national, where the grounds upon which the exclusion was based do not similarly apply to New Zealand citizens.
The TRIPS Agreement also requires that if new plant varieties are not protected by patents, then they must be protected by their own special legislation. Protection for new plant varieties in New Zealand is by way of the Plant Variety Rights Act 1987.
The Convention on Biological Diversity
The Convention on Biological Diversity imposes a number of general obligations relevant to the conservation, sustainable use, sharing of information on, and equitable sharing of benefits, derived from biodiversity. Subject to their national legislation, parties are required, among other things, to:
- Preserve the knowledge, innovations, practices and traditions of indigenous communities relevant to the conservation and sustainable use of biological diversity.
- Promote the wider use and application of this knowledge, with the involvement and approval of the holders of the knowledge.
- Encourage the equitable sharing of the benefits of this knowledge.
Parties are also required to facilitate the transfer between Contracting States of technologies, (including biotechnology), relevant to the conservation and sustainable use of biodiversity and genetic resources. In the case of technology subject to intellectual property rights, this transfer is generally to be consistent with adequate and effective protection of intellectual property rights.
Back to Top