Patentability of "life"

We were surprised to see a Supplementary Order Paper (SOP) proposing a new exclusion from patentability prior to the second reading.  The SOP proposes new clause 15(4) ( http://www.legislation.govt.nz/sop/members/2012/0124/latest/TMPN10025.html)

which reads as follows:

(4)    Organisms (including plant varieties) and traits in organisms are not patentable inventions.

(4A)  Subsection (4) applies whether or not the organism or the trait in the organism has been derived through genetic modification or other similar technology.

(4B)  For the purposes of this section, organism has the same meaning as in Section 2 of the Hazardous Substances and New Organisms Act 1996.

The accompanying explanatory note ( http://www.legislation.govt.nz/sop/members/2012/0124/latest/DLM4740007.html) indicates that the proposed amendment makes it clear "life" is not a patentable invention. Specifically, that organisms, microorganisms and their traits are not patentable inventions.

The proposed amendment significantly expands on the current Patents Bill exclusions in the biological space which are directed to:

  1. human beings, and biological processes for their generation
  2. methods of treatment of human beings by surgery or therapy
  3. methods of diagnosis practised on human beings, and
  4. plant varieties

Implications

The proposed amendment would significantly alter New Zealand patent law.  Protection is currently available for organisms (including microorganisms) provided they also meet the usual requirements for novelty and inventive step, and are a "manner of manufacture".  The proposed amendment would mean that microorganisms, plants and animals are no longer patentable in New Zealand.

The proposed amendment may also breach the limits on exclusions to patentability set by Article 27 of TRIPS.

Next steps

The SOP will most likely be considered and voted on by the Committee of the whole House.  There will be no public forum available for providing comment on the SOP.

It is difficult to see the SOP receiving sufficient support in Parliament to pass. The SOP was proposed by one of the smaller opposition parties.  A majority vote is required for the amendment to pass.  This would require support of all opposition parties and some of the support parties.