Prior dating intellectual property
The practice note of 2008 entitled Contrary to morality | Raising objections under section 17(1) has caused some confusion with respect to the nature of what would and would not be objectionable under section 17(1) of the Patents Act 1953.The final paragraph of the 2008 practice note was included to provide a general guide as to the subject matter which may attract an objection under section 17(1) of the Patents Act 1953.The decision of the Commissioner in the 7 July 1997 Practice Note, and the decision of the Court of Appeal in , established that the use of a substance for a new and inventive therapeutic use can be protected by a Swiss-type claim.
The Applicants have produced a means of overcoming or alleviating these problems by the application of a specific dosage regime and I think it proper ” (Emphasis added).
The protection of the second or further therapeutic use by Swiss-type claims was allowed in New Zealand by the Commissioner of Patents in a Practice note which appeared in Patent Office Journal 1412 on 7 July 1997, and was approved by the Court of Appeal in).
It should be noted that there is a significant lack of jurisprudence in New Zealand which considers Swiss-type claims.
In doing so, IPONZ considers that it may for any given application under consideration take the following into account: the concerns of interest groups, evidence including appropriate public polls and research, corresponding foreign legislation, caselaw and guidelines.
As a general guide, claims to the following subject matter are likely to attract an objection under s17(1): human beings, processes which give rise to human beings and biological processes for their production; methods of cloning human beings; human embryos and processes requiring their use; transformed host cells within a human and other cells and tissues within a human.” This document provides guidelines on applications relating to the Swiss-type claims under the Patents Act 1953 (“the Act”).
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