What Can Be Patented?

A patent is a form of registrable intellectual property protection, for a broad range of inventions. 

As a patent is the strongest form of IP protection, it is also the most difficult to attain! 

In fact, the Intellectual Property Office of New Zealand (IPONZ) recommends you engage an IP Attorney if you are interested in applying for a patent.

In this article, we’ll go over the most common types of inventions you can patent in New Zealand.

1. Business Methods

A business method that incorporates improved or new technology for a new invention can be patentable in New Zealand. The technology can’t be ‘incidental’ to the invention; it has to be substantial to the invention.

For example, using pre-existing, unaltered technology in a completely new business method is not patentable. 

Also, a business ‘scheme’ is not patentable. We often hear clients ask us how they can get a patent to protect a business scheme or way of doing things they have invented. Unfortunately, protecting business schemes through patents is not an option, though there might be other ways to protect your business’ confidential information. 

In order to qualify as a patent, the invention should also address a problem.

In New Zealand, the test for patentability includes a requirement for an inventive step that is not obvious to someone skilled in the relevant field. Business methods that are merely computer-implemented are unlikely to meet this threshold.

2. Micro-Organisms

Patents relating to transgenic plants or animals or micro-organisms must also be able to explain how the invention can be replicated and not just produce an isolated sample.

In particular, the following can be patented in New Zealand;

• Micro-organisms themselves, e.g., a fungus 
• Micro-organism products, e.g., an enzyme
• A process involving micro-organisms, e.g., fermentation
• Transgenic plants or animals
• Mutant animals or plants

3. Computer-Related Inventions

You can also get a patent to protect the manner in which a program makes a computer function in New Zealand. A patent does not protect the code (this would be protected by copyright) or the design (this can be protected by design rights).

The invention must be a solution to a problem, be innovative, and be applicable in an industry rather than in an isolated scenario. 

Patents can protect both hardware and software. For hardware patents, this can include part of a computer or an accessory to a computer that improves function. 

4. Biological Inventions

There is a wide range of micro-organisms and biological materials that can get a standard patent in New Zealand. 

Things like cell lines and organelles, isolated bacteria and prokaryotes, and even processes using micro-organisms or enzymes can be patentable.

Other examples are isolated proteins and polypeptides, and modified organisms that are non-human such as plants and bacteria.

Note patents can’t protect plant varieties – this falls under a different form of IP protection called ‘Plant Variety Rights’ which allow a breeder to deal exclusively with the plant variety they have created, whether this be selling, exporting or producing.

How Long Will A Patent Last For?

This depends on the type of patent. In New Zealand, there are two types of patents: standard and short-term. A standard patent lasts 20 years. For a standard patent to succeed, it has to be new, involve an inventive step, and be industrially applicable.

A short-term patent lasts only 10 years and is intended for inventions that do not meet the inventive step requirement of a standard patent but are new and industrially applicable.

When Can A Patent Be Refused?

Under section 17 of the Patents Act 2013 (NZ), a patent can be refused if the invention is not a patentable invention. In other words, if the invention is not novel, does not involve an inventive step, or is not useful, it can be refused.

For example, an invention that is designed to injure or kill someone will be refused on the basis that its purpose is against the law.

The interpretation of patentability also extends to uses that go against public policy or morality. So, it’s important to familiarise yourself with the laws in New Zealand and ensure your invention does not contravene any of the provisions.

The Takeaway

If you have improved on or invented something new, you may be keen to see if you can apply for a patent in New Zealand. If you can’t protect your intellectual property with a patent, there may be other forms of IP protection that apply to you. 

Reach out to our intellectual property lawyers at [email protected] or call us on 0800 002 184 for a free, no obligation chat!

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