The on-again-off-again nature of New Zealand’s Patents Bill

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 yoyo-ed 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.

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?

Secondly, is the final content of the Bill a fait accompli?

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, and Vietnam.

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 TPP).

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.