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NZ's Patents Act under threat by Trans Pacific Partnership?

Sarah Putt. 14 November 2013, 4:36 pm

It took five years for New Zealand's Patents Act to pass into law, a widely supported and historic piece of legislation that effectively removes software patents and paves the way for unimpeded and genuine technology innovation.

But is that freshly minted law already under threat by negotiations over the Trans Pacific Partnership - a trade agreement being drafted in secret between 12 countries, including New Zealand? The chapter on intellectual property has been leaked by Wikileaks in partnership with a number of media outlets, including the NZ Herald.

The leaked IP chapter contains the following definition of Patents (section E on page 28):

1. Subject to the provisions of paragraph 2 and 3, each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application. [US/AU propose; CL/MY/PE/SG/VN/BN/NZ/CA/MX oppose: The Parties confirm that:

(a) patents shall be available for any new uses or methods of using a known product],

[US/JP propose; CL/MY/PE/SG/VN/BN/AU/NZ/CA/MX oppose: (b) a Party may not deny a patent solely on the basis that the product did not result in enhanced efficacy of the known product when the applicant has set forth distinguishing features establishing that the invention is new, involves an inventive step, and is capable of industrial application.]

And more worryingly:

3. [US: Consistent with paragraph 1] each Party [US propose; AU/NZ/VN/BN/CL/PE/MY/SG/CA/MX oppose: shall make patents available for inventions for the following] [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose: may also exclude from patentability]:

(a) plants and animals, [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose: other than microorganisms];

[JP oppose: (b)diagnostic, therapeutic, and surgical methods for the treatment of humans or animals [US propose; AU/SG/MY/NZ/CL/PE/VN/BN/CA/MX oppose: if they cover a method of using a machine, manufacture, or composition of matter]; [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose:] and

(c) essentially biological processes for the production of plants or animals, other than non-biological and microbiological processes for such production.]

[MX propose: (d) and the diagrams, plans, rules and methods for carrying out mental processes, playing games or doing business, and mathematical methods as such; software as such; methods to present information as such; and aesthetic creations and artistic or literary works.]

So in short, the US appears to be proposing that all of these things should be explicitly patentable - overriding New Zealand's recent Patents Act and similar laws being discussed around the world. Everyone else is saying they could be excluded. By our reading, the US also appears to be pushing for the forced patentability of mathematical methods, methods of presenting information and even literary works! Who will win?

The good news is that the New Zealand delegation is at the forefront of opposing these moves and absolutely need to be congratulated, but how long can they hold out?

In addition to software patents, other areas of concern raised by organisations such as InternetNZ and TUANZ, as part of the Fair Deal Coalition, include copyright and pharmaceutical interests.

The prize being dangled by the US - which is pushing for wider adoption of its copyright and patent laws - is greater access to their market. This is especially enticing for the agricultural sector.

Nobody is denying that the TPP can produce benefits for our economy, the question is: how high a price are we prepared to pay? IITP CEO Paul Matthews was one of a number raising concerns back in 2011 that NZ might be preparing to sell tech down the river for agriculture - it seems this is still very much at risk.

Let's hope the New Zealand negotiators retain their tough stance. But even the idea that hard-fought gains in our domestic law, such as the removal of software patents, could be being bartered and traded away in secret is chilling. Other than suspicions, we wouldn't even know this was happening if it hadn't been leaked.


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