Información para el examen del párrafo 3 b) del artículo 27 (materia patentable) - Ver

New Zealand

Lista de preguntas

Lista ilustrativa de cuestiones preparada por la Secretaría
Any plants, animals (excluding humans), products and processes (except therapeutic and surgical methods of the treatment of humans) are patentable provided that they are novel, involve an inventive step, are industrially applicable, are not contrary to morality, and provided they are not claimed as they are found in nature. No distinction is made as to the field of technology or the geographical origin of any application.
Human beings are excluded from patentability because they do not fall within the definition of invention as defined by section 2 of the New Zealand Patents Act 1953 (see item 5 below). Therapeutic and surgical methods of the treatment of humans are also not considered to be included within the definition of an invention. Accordingly, these are excluded from patentability.
The Patents Act 1953 excludes inventions from patentability which are contrary to morality.
Claims to medical treatment were rejected by the Court of Appeal decision in The Wellcome Foundation (Hitching's) Application [1983] FSR 593.
Plant varieties are patentable.
The Patents Act 1953 does not define subject-matter which is specifically excluded from patentability. However, applications must relate to an "invention", which, as defined by the Patents Act 1953, means any manner of new manufacture the subject of letters patent and grant of privilege within section 6 of the Statute of Monopolies, and any new method or process of testing applicable to the improvement or control of manufacture; and includes an alleged invention.
Subject-matter which is found in nature is patentable provided it is not claimed either in the natural state, or as it is normally found in nature.
Section 10(3) of the Patents Act 1953 requires that every complete specification shall particularly describe the invention and the method by which it is to be performed, and shall disclose the best method of performing the invention which is known to the applicant and for which he [or she] is entitled to claim protection.
New Zealand complies fully with Article 28. The rights conferred include the exclusive rights to prevent third parties not having the owner's consent from the acts of making, using, offering for sale, selling or importing the invention claimed, as stipulated in Article 28 of the TRIPS Agreement, for up to 20 years.
There are no specific exceptions.
Compulsory licenses may be obtained from the Court under section 46 of the Patents Act 1953 if, after the expiry of three years from the date of sealing of a patent, or four years from the date of the patent, whichever is the later, the invention is not being supplied or not being supplied on reasonable terms in New Zealand.

N.B.: Sírvanse cerciorarse de que las respuestas a las preguntas precedentes abarquen cada una de las categorías especificadas en el apartado b) del párrafo 3 del artículo 27, es decir, los microorganismos, los procedimientos esencialmente biológicos para la producción de plantas o animales, los procedimientos microbiológicos, los procedimientos no biológicos, las obtenciones vegetales y las demás invenciones relativas a plantas o animales.

Yes. Protection of plant varieties is provided for under the New Zealand Plant Variety Rights Act 1987.
New Zealand is a signatory to both the 1978 and the 1991 revisions to the UPOV Convention. New Zealand has ratified, acceded and adheres fully to the 1978 Convention.
Not Applicable.
Yes, concurrent protection is possible. Patents can be obtained for plants under the normal criteria for patent protection. This includes plants that are excluded under plant variety right protection.
The Plant Variety Rights Act 1987 1 The Plant Variety Rights Amendment Act 1990 1 The Plant Variety Rights Amendment Act 1994 1 The Plant Variety Rights Regulations 1988 2 The Plant Variety Rights Regulations 1988 – Amendment 2 The Plant Variety Rights Regulations 1988 – Amendment 2 The Plant Variety Rights (Fees) Order 1991 2 The Plant Variety Rights (Grantee’s Rights) Order 1988 2 The Plant Variety Rights Amendment Act 1996 3 The Plant Variety Rights (Grantee’s Rights) Order 1997 4
"Variety" is defined in section 2 of the New Zealand Plant Variety Rights Act 1987. It means a cultivar, or cultivated variety, of a plant, and includes any clone, hybrid, stock, or line of a plant; but does not include a botanical variety of a plant.
To be eligible for protection under the Plant Variety Rights Act 1987 (section 10(2)), a variety must be determined to be new; distinct; homogenous; and stable as required by the 1978 UPOV Convention.
A candidate variety must be distinct from any other variety whose existence was a matter of common knowledge at the date the application was made (section 10(4)). An unnamed variety may be recognised as one of common knowledge. In case of a variety derived from one already known, or from a plant found in nature, protection would be granted only if the breeder has transformed the original plant material in a significant way.
Protection is only granted based upon characteristics of plant varieties derived from germplasm.
The ‘owner’ is entitled to rights in relation to any variety. Section 2 of the New Zealand Plant Variety Rights Act 1987 defines ‘owner’ as a person “who bred or discovered that variety, and includes a successor of that person”.
Applications must be made in accordance with section 5 of the Plant Variety Rights Act 1987. The Plant Variety Rights Act 1987 is administered by the Ministry of Commerce through the Plant Variety Rights Office of New Zealand.
The Plant Variety Rights Act 1987 provides that grantees shall have the exclusive right to produce for sale, and to sell reproductive material of the variety concerned; to propagate the variety for the purposes of the commercial production of fruit, flowers, or other products of that variety (if that variety is a plant of a type specified by the Governor General by Order in Council); to authorise any other person or persons to do any of the things described above; and to assign, mortgage or otherwise dispose of the grant in respect of that variety. The Act also provides that where there is imported into New Zealand any reproductive material of a protected variety, any propagation, sale or use of that material, as reproductive material and without the authority of the grantee concerned, constitutes an infringement of the rights of that grantee. The importation into New Zealand from a country that is not a UPOV country, of produce of a protected variety, or from a UPOV country of produce of a protected variety in respect of which, under the law of that country, it is not possible to make the equivalent of a grant without the consent of a grantee, also constitutes an infringement of the rights of the grantee. In addition, the sale under the denomination of a protected variety of reproductive material of some other variety constitutes an infringement of the rights of the grantee of that protected variety, unless the groups of plants to which those varieties belong are internationally recognised as being distinct for the purposes of denomination.
- acts performed for research or experimental purposes; Yes – excepted. - acts performed to develop new varieties of plants; Yes – excepted. - acts performed to commercialize such newly developed varieties; Yes – excepted. - any "farmer's privilege" (e.g. acts performed by a farmer on his own land in respect of seed saved from the previous harvest); Yes – excepted. - acts done privately and for non-commercial purposes; Yes – excepted. - compulsory licensing. Yes – excepted as follows. The Plant Variety Rights Act 1987 provides that any person may at any time after the expiration of three years from the making of a grant, on payment of the prescribed fee, request the Commissioner [of Plant Variety Rights] to consider whether or not reasonable quantities of reproductive material of a reasonable quality of the variety concerned are available for purchase by members of the public at a reasonable price. Where such a request is made, the Commissioner shall give the grantee concerned notice of it and a reasonable time to be heard in relation to it. If after considering any submissions made by that grantee, the Commissioner is satisfied that, reasonable quantities of reproductive material of reasonable quality of the variety concerned are not available for purchase by members of the public at a reasonable price, the Commissioner shall issue to the person who made the request one or both of the following: - a compulsory licence for the reproduction and sale of reproductive material of that variety; - an order requiring the grantee to sell to that person reproductive material of that variety. In considering whether or not reasonable quantities of reproductive material of reasonable quality are available to members of the public at a reasonable price, the Commissioner shall not take into account any reproductive material that is available only subject to the condition that all or any of the produce from that material must be sold or offered to a specified person, or to one of a specified group of persons, or to a member of a specified class or description of person.
Protection in New Zealand is available for: - 23 years for woody plants including root stock; and - 20 years for all other plant types.
A plant variety right may be assigned, mortgaged, or otherwise disposed of; and may devolve by operation of law as noted in 4(h) above.
It is up to the right holders (grantees) to take action in the case of any infringement of their rights. Section 17 specifies the rights of grantees including factors that a Court must take into consideration in awarding damages or in granting any other relief where plant variety rights have been infringed.
B. Sistemas de protección de las obtenciones vegetales
No. However, “animals” does not include human beings. Human beings are not patentable under section 2 of the New Zealand Patents Act 1953, that is, a manner of new manufacture the subject of letters patent and grant of privilege within section 6 of the Statute of Monopolies.
Not Applicable.
Not Applicable.
Not Applicable.
Yes.
Yes.
Yes.
Not applicable.
Yes.
Yes.
Yes, provided the scope of the claims do not encompass the plant or animal in its natural environment.
Yes.
Yes.
The 1978 Act.
No.
No.
No.
No.
Yes. Protection can be obtained for a plant variety known to the public or publicly available prior to the application for sui generis protection for that plant variety provided there has been no sale of that variety with the agreement of any relevant owner of that variety: (i) in New Zealand, for more than 12 months before the date on which that application was made; and (ii) overseas, for more than six years before that date, in the case of a woody plant, or for more than four years before that date in every other case.
No.