The New Zealand Patent Office (“IPONZ”) is acutely aware of the High Court decision D’Arcy v Myriad Genetics Inc and of the Australian Patent Office’s proposed examination practice following the High Court decision, yet has no intention of changing its practice regarding “gene patents” without there being some other significant development either in the courts or more preferably by way of legislation, and more particularly of New Zealand origin.
The High Court decision can be found here: D’Arcy v Myriad Genetics Inc [2015] HCA 35.
At present, IPONZ has no intention of adopting the High Court decision on the statutory grounds of isolated genes not being a manner of manufacture, but the decision may be deemed persuasive should it be drawn to the attention of a New Zealand court or tribunal. However, at the moment it is not anticipated that the decision will be drawn to the attention of a New Zealand court directly by a change in practice by IPONZ, unless there are further developments in that space.
Regarding Australia’s proposed examination practice, according to IPONZ, it seems to be generally in line with the New Zealand approach to interpretations of exceptions/exclusions, but not in line with the corresponding US approach.
Should there be a change in IPONZ practice, we can expect an update to the New Zealand examination manual together with a practice note. Until then, it’s business as usual in New Zealand.