With the Trans-Pacific Partnership Agreement (TPPA) text finally being released, we now have a little more visibility as to how New Zealand's intellectual property laws may change.
Patent term extensions, grace periods and protection for software 'as such'
Patent term extensions will be required, presumably up to 5 years from the expiry date of the 20 year term. These extensions are designed to compensate for unreasonable delays in the patent examination process and unreasonable delays in the safety and efficacy approval process run by Medsafe. In theory, extension of term will be available for all inventions, including those in the ICT field. However in practice, they are most likely to be granted to pharmaceutical inventions rather than ICT inventions. Interestingly, patent extensions, which were available under the Patents Act 1953, were excluded from the new Patents Act 2013 as the costs were said to outweigh the benefits. MFAT's present position is that an extension of term regime will have little impact on New Zealand.
A grace period of 12 months for prior public disclosure by the inventor will be required. That is, any disclosures about the invention by the inventor in the 12 months before a patent application is filed will be disregarded for the purposes of judging the novelty and inventiveness of the alleged invention. This is a substantial change for New Zealand. Although a number of our trading partners currently allow grace periods, New Zealand has not done so in the past. Grace periods are likely to be welcomed by all inventors as, compared to the current law, they will allow inventors to obtain a patent if there has been inadvertent disclosure during the grace period, and also allow commercial testing of an invention during the period, without destroying the validity of a subsequent application.
The patentability rules relating to software are unaffected by the TPPA. That is, computer programs 'as such' remain excluded from patentable subject matter and it remains to be seen how the rules will be interpreted in New Zealand.
Longer copyright term
Another key TPPA change is the extension of the term of copyright protection in many works from the life of the authorplus 50 years to life plus 70 years. The expected cost of this extension to New Zealand consumers is $55 million a year and some commentators have questioned whether there will be an overall benefit or cost to New Zealand consumers and copyright owners. Australia already has a general copyright term of the author's life plus 70 years.
Technological Prevention Methods
New Zealand already has laws restricting the circumvention of Technological Prevention Measures (TPMs). The TPPA requires stronger TPM's to be implemented, but preserves exceptions already provided under New Zealand law.
Under the coming into force provisions of the TPPA, New Zealand will have two years from the date of signing of the agreement to complete “domestic approval, legislative and ratification procedures”.
The full text of the TPPA can be read on MFAT's website.