Micro-organisms to Remain Patentable Subject Matter in New Patents Act

Thursday 12th September 2013

Despite submissions by Green Party MP Steffan Browning to have all forms of life, including micro-organisms, excluded from patentability, Parliament has ultimately ruled in favour of their inclusion as patentable subject matter in the new Patents Act.

The new Act, which is set to modernise New Zealand’s intellectual property laws and replace the existing Patents Act 1953, was passed into law, progressing through its third reading with 117 votes to 4. Originally introduced to New Zealand Parliament by the Labour Government in 2008, the Patents Bill has been the subject of considerable debate over the past 5 years as Parliament has sought to strike a balance between rewarding innovators for their inventive contributions and protecting the interests of Maori and New Zealand’s wider society.

The inclusion of micro-organisms as patentable subject matter in the new Act was first opposed by Browning in his Supplementary Order Paper (SOP) 124 proposed September 2012. The explanatory note accompanying SOP 124 made it clear that the intention of the SOP was to clarify that patents must not be held over ‘life’, with the proposed amendments explicitly excluding from patentability, all organisms, including animals, plants and micro-organisms and their traits, whether derived naturally or through genetic modification or similar technology.

In August 2013, Browning then submitted SOP 336, being consequential to SOP 124, and proposing further amendments to the Bill, including the excision of several procedural clauses related to patents which encompassed micro-organisms.  The SOPs were considered by the House during the Bill’s third reading on 28 August 2013. The proposed amendments received 26 votes in support from a number of small opposition parties.  However, after receiving 95 opposing votes, were not agreed to by the majority of the House.

Those opposed to the amendments advocated the importance of micro-organism patents because of their ability to encourage investment in technologies aimed at improving global sustainability, as well as the potential for biotechnology to serve as a transformational boon to New Zealand’s 21st century economy. Labour MP, David Parker, referred to New Zealand company LanzaTech as an example of the innovation that is encouraged by allowing patents to micro-organisms.  LanzaTech is developing innovative technology which uses proprietary micro-organisms to transform waste gases into useful fuels and chemicals.

Micro-organisms aside, several statutory exclusions to the patentability of life and related biological applications are to remain in the new Patents Act. These include:

  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;
  4. plant varieties.

Parliament’s stance to include micro-organisms as patentable subject matter, is an important indication of its continued commitment to support innovation and science research in New Zealand. The decision also serves as reinforcement of the importance of intellectual property assets as tools to facilitate growth and development in New Zealand’s biotechnology sector. 


This article is intended to summarise potentially complicated legal issues, and is not intended to be a substitute for individual legal advice. Please contact a Baldwins attorney or other IP professional before acting on any information contained in this publication.

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