Intellectual property rights and genetic modification
Intellectual property rights are the rights people have over their intellectual creations. They relate to how you can control something you have created. New Zealand's laws provide for a number of intellectual property rights. Patents and plant variety rights are the most relevant to genetic modification.
What are Patents?
A patent is a form of social contract that gives an inventor an exclusive right to make, use and sell the invention for up to 20 years. The government grants this right in return for information about the invention being disclosed to the public. During the term of the patent other people cannot use the invention or imitate it without the patent owner’s permission licence or agreement. A person usually receives permission to use the invention by purchasing a product or service containing the invention from the patent owner or an authorised licensee.
Overall, the system promotes investment in research and development, and the free flow of ideas between researchers. If no such protection existed, it is likely that less research would be carried out and more inventions would be kept as trade secrets.
What makes an invention patentable?
Under the Patents Act 1953, among other criteria the invention must be:
- novel – new and original
- inventive – there must be some non-obvious inventive step over what was previously known or used
- industrially applicable – it must be useful and able to be exploited commercially
- readily understood – the invention must be fairly and sufficiently described to allow a person of average skill in the relevant field to rework the invention without further experimentation or invention.
What a patent does not do
A patent does not:
- give the patent owner exclusive ownership of an invention
- prevent or regulate research and development
- give the patent owner a right to exploit an invention (as in some cases legal or regulatory constraints will stop the patent owner from exploiting the invention, eg, an approval to release a patented genetically modified organism in New Zealand would also be required under the Hazardous Substances and New Organisms Act)1996
- prevent someone from doing something which they did before the patent was granted, or
- apply to any substance or organism when found in its natural environment.
Though definitions of patents vary from country to country, it is generally accepted that patents would not be granted for human beings or naturally occurring things in the form in which they exist in nature.
How does this apply to genetic modification
Biologically based inventions can be patented. Patents are available for new materials (eg, proteins, enzymes, hormones, genes, DNA or micro-organisms) that have either been discovered and isolated, or in some way artificially modified, and have industrial or commercial application. Newly developed plants and animals (including GM organisms) can be patented if they meet the legal criteria. Patents are also available for biotechnology processes, techniques and uses.
Patent law reform
The Government has been reviewing the Patents Act to update it to take into account social and technological changes since the Act was passed into law in 1953. The government has proposed amendments to strengthen the criteria for granting a patent to ensure these are granted for genuine innovations (that is they must be a ‘manner of manufacture’ that is novel, has an inventive step and is useful). The proposed amendments would exclude human beings and methods of medical treatment from patentability for ethical reasons (as recommended by the Royal Commission on Genetic Modification). The Commissioner of Patents will also be able to refuse patents that are ‘contrary to morality’. The government also plans to set up a Māori Consultative Committee to provide advice as to whether an invention involves traditional knowledge, indigenous plants and animals or is likely to be contrary to Māori values. Legislation amending the Act is planned for introduction to Parliament early in 2004.
Plant variety rights
Plant variety rights are granted under the Plant Variety Rights Act 1987 (PVRA 87) for new varieties of plants, and give the holder the exclusive right to:
- produce and sell propagating material of the variety concerned
- propagate that variety to commercially produce fruit, flowers , or other products
- authorise other people to do any of these things.
The maximum period of protection is 23 years for woody plants (eg, fruit trees, roses or rootstocks) and 20 years for other types of plants (eg, grasses, grains and, vegetables).
For a plant variety to be protected under the PVRA 87, it must be:
- new
- distinct – sufficiently different from existing plant varieties so that the new variety can be clearly distinguished from the old variety
- uniform – the plants that make up the new variety must be sufficiently similar
- stable – the variety must remain unchanged through successive generations of reproduction or propagation.
Although the protection a breeder receives from plant variety rights is similar to that given to an inventor by a patent, there are significant differences. Notably, plant variety rights differ from patents by allowing other plant breeders to use a protected variety to develop new varieties, and farmers to save seed from protected varieties for their own sole use in crop production (but not for sale).
Plant variety rights law reform
As part of its programme to reform New Zealand’s intellectual property rights legislation, the Government has been reviewing the PVRA 87. Advances in plant-breeding technology and international standards for protecting plant varieties had raised questions about the adequacy of protection under the Act.
As a result, it is proposed to amend the Act to enhance the exclusive rights owners have over their protected varieties, and will also apply to varieties “essentially derived” from a protected variety. An “essentially derived” variety is distinct from the initial variety in one significant characteristic but otherwise has all the characteristics of the initial variety. Plant varieties will also be excluded from patenting, so that they are only protected under one Act.
The legislation amending the Plant Variety Rights Act 1987 is expected to go to Parliament in 2004.
More information about the review of patents and plant variety rights legislation is available from:
Ministry of Economic Development
or at PO Box 1473, Wellington.
Last updated: 17 September 2007
