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Patents Act 1953: s2 Interpretation

*

(1) In this Act, unless the context otherwise requires,---
Applicant includes a person in whose favour a direction has been given under section 24 of this Act and the personal representative of a deceased applicant Article includes any substance or material, and any plant, machinery, or apparatus, whether affixed to land or not Assignee includes the personal representative of a deceased assignee; and references to the assignee of any person include references to the assignee of the personal representative or assignee of that person Commissioner means the Commissioner of Patents Commonwealth
[Repealed]
Commonwealth: this definition was repealed, as from 2 September 1996, by section 2 Patents Amendment Act 1996 (1996 No 139). Convention application has the meaning assigned to it by subsection (4) of section 7 of this Act Convention country, in any provision of this Act, means an entity for the time being declared by an order under section 77 to be a convention country for the purposes of that provision Convention country: this definition was substituted, as from 14 October 1999, by section 3(2) Patents Amendment Act 1999 (1999 No 119). Court means the High Court Date of filing, in relation to any document filed under this Act, means the date on which the document is filed or, where it is deemed by virtue of any provision of this Act or of regulations made thereunder to have been filed on any different date, means the date on which it is deemed to be filed Exclusive licence means a licence from a patentee which confers on the licensee, or on the licensee and persons authorised by him, to the exclusion of all other persons (including the patentee), any right in respect of the patented invention; and exclusive licensee shall be construed accordingly Government Department means any Department or instrument of the Executive Government of New Zealand Integrated circuit means a circuit, in its final or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in or on a piece of material and that is intended to perform an electronic function Integrated circuit: this definition was inserted, as from 1 January 1995, by section 2 Patents Amendment Act 1994 (1994 No 122). See sections 17 and 18 of that Act as to the transitional

provisions. See regulation 2 Patents Amendment Act Commencement Order 1994 (SR 1994/302). International application means an application made under the Patent Cooperation Treaty for the protection of an invention International application: this definition was inserted, as from 1 December 1992, by section 2 Patents Amendment Act 1992 (1992 No 81). International Bureau means the International Bureau of the World Intellectual Property Organization International Bureau: this definition was inserted, as from 1 December 1992, by section 2 Patents Amendment Act 1992 (1992 No 81). International filing date means the international filing date given to an international application under Article 11 or Article 14(2) of the Patent Cooperation Treaty International filing date: this definition was inserted, as from 1 December 1992, by section 2 Patents Amendment Act 1992 (1992 No 81). Invention means any manner of new manufacture the subject of letters patent and grant of privilege within section 6 of the Statute of Monopolies and any new method or process of testing applicable to the improvement or control of manufacture; and includes an alleged invention Journal means the Patent Office Journal published under subsection (1) of section 112 of this Act Minister means the Minister of Commerce Minister: substituted, as from 1 December 1988, by section 4(1) Trade and Industry Act Repeal Act 1988 (1988 No 156). Patent means letters patent for an invention Patent Cooperation Treaty---

* (a) Means the Patent Cooperation Treaty, signed at Washington on the 19th day of June 1970, the text of which, as amended on the 2nd day of October 1979 and modified on the 3rd day of February 1984, is set out in Schedule 1 to the Patents Amendment Act 1992; and

* (b) Includes any amendments, modifications, and revisions from time to time made to the Treaty, being amendments, modifications, and revisions to which New Zealand is a party and by which New Zealand is bound: Patent Cooperation Treaty: this definition was inserted, as from 1 December 1992, by section 2 Patents Amendment Act 1992 (1992 No 81). Patent of addition means a patent granted in accordance with section 34 of this Act Patent Attorney means a person carrying on for gain in New Zealand the business of acting as agent for other persons for the purpose of applying for or obtaining patents in New Zealand or elsewhere

Patentee, in relation to any patent, means the complete specification may, subject to the person or persons for the time being entered on the provisions of this section and of section 10 of this register of patents as grantee or proprietor of the Act, be filed in pursuance of those applications, or, patent if more than one complete specification has been Prescribed means prescribed by this Act or by filed, may with the leave of the Commissioner be regulations made under this Act proceeded with in respect of those applications. Priority date has the meaning assigned to it by (4) Where an application for a patent (not being a section 11 of this Act convention application) is accompanied by a Published, except in relation to a complete specification purporting to be a complete specification, means made available to the public; specification, the Commissioner may, if the and without prejudice to the generality of the applicant so requests at any time before the foregoing provision a document shall be deemed acceptance of the specification, direct that it shall for the purposes of this Act to be published---
be treated for the purposes of this Act as a provisional specification, and proceed with the

* (a) If it can be inspected as of right at any application accordingly. place in New Zealand by members of the (5) Where a complete specification has been filed public whether upon payment of a fee or in pursuance of an application for a patent otherwise; or accompanied by a provisional specification or by a

* (b) If it can be inspected in a library of a specification treated by virtue of a direction under Government Department or of any subsection (4) of this section as a provisional institution or public authority and the specification, the Commissioner may, if the library is one which is open generally to applicant so requests at any time before the members of the public who are interested acceptance of the complete specification, cancel in matters to which the document relates the provisional specification and post-date the and is a library in which members of the application to the date of filing of the complete public in search of information related to specification. the subject of the document would Compare: Patents Act 1949, s 3 (UK); 1921-22 No ordinarily seek and do in fact seek the 18 ss 4, 7, 18; 1939 No 26 s 73 information: s10 Contents of specification Receiving Office has the same meaning as in

* (1) Every specification, whether complete or Article 2(xv) of the Patent Cooperation Treaty provisional, shall describe the invention, and shall Receiving Office: this definition was inserted, as begin with a title indicating the subject to which from 1 December 1992, by section 2 Patents the invention relates. Amendment Act 1992 (1992 No 81). (2) Subject to any regulations made under this Act, The Statute of Monopolies means the Act of the drawings may, and shall if the Commissioner so 21st year of the reign of King James the First, requires, be supplied for the purposes of any chapter 3, intituled "An Act concerning specification, whether complete or provisional; and monopolies and dispensations with penal laws and any drawings so supplied shall, unless the the forfeiture thereof". Commissioner otherwise directs, be deemed to form part of the specification, and references in this Act to a specification shall be construed S9 Complete and provisional specifications accordingly.

* (1) Every application for a patent (other than a (3) Every complete specification---
convention application) shall be accompanied by

* (a) Shall particularly describe the either a complete specification or a provisional invention and the method by which it is to specification; and every convention application be performed; and shall be accompanied by a complete specification.

* (b) Shall disclose the best method of (2) Where an application for a patent is performing the invention which is known accompanied by a provisional specification, a to the applicant and for which he is complete specification shall be filed within 12 entitled to claim protection; and months from the date of filing of the application,

* (c) Shall end with a claim or claims and if the complete specification is not so filed the defining the scope of the invention application shall be deemed to be abandoned: claimed. Provided that the complete specification may be (4) The claim or claims of a complete specification filed at any time after 12 months but within 15 must relate to a single invention, must be clear and months from the date aforesaid if a request to that succinct, and must be fairly based on the matter effect is made to the Commissioner and the disclosed in the specification. prescribed fee paid on or before the date on which (5) Regulations made under this Act may require the specification is filed. that in such cases as may be prescribed by the (3) Where 2 or more applications accompanied by regulations a declaration as to the inventorship of provisional specifications have been filed in the invention, in such form as may be so respect of inventions which are cognate or of prescribed, shall be furnished with the complete which one is a modification of another, a single

specification or within such period as may be so (6) In any case to which subsections (2) to (5) of prescribed after the filing of that specification. this section do not apply, the priority date of a (6) Subject to the foregoing provisions of this claim shall be the date of filing of the complete section, a complete specification filed after a specification. provisional specification, or filed with a convention application, may include claims in respect of developments of or additions to the S17 Refusal of application in certain cases invention which was described in the provisional

* (1) If it appears to the Commissioner in the case of specification or, as the case may be, the invention any application for a patent that the use of the in respect of which the application for protection invention in respect of which the application is was made in a convention country, being made would be contrary to morality, the developments or additions in respect of which the Commissioner may refuse the application. applicant would be entitled under the provisions of (2) An appeal to the Court shall lie from any section 7 of this Act to make a separate application decision of the Commissioner under this section. for a patent. (7) Where a complete specification claims a new substance, the claim shall be construed as not extending to that substance when found in nature. S21 Opposition to grant of patent Compare: Patents Act 1949, s 4 (UK); 1921-22 No

* (1) At any time within the period prescribed by 18 ss 3, 4 subsection (2) of this section any person interested s11 Priority date of claims of complete specification may give notice to the Commissioner of opposition

* (1) Every claim of a complete specification shall to the grant of the patent on any of the following have effect from the date prescribed by this section grounds: in relation to that claim (in this Act referred to as

* (a) That the applicant for the patent, or the the priority date); and a patent shall not be person described in the application as the invalidated by reason only of the publication or use true and first inventor, obtained the of the invention, so far as claimed in any claim of invention or any part thereof from him, or the complete specification, on or after the priority from a person of whom he is the personal date of that claim, or by the grant of another patent representative: upon a specification claiming the same invention

* (b) That the invention, so far as claimed in in a claim of the same or later priority date. any claim of the complete specification, (2) Where the complete specification is filed in has been published in New Zealand pursuance of a single application accompanied by before the priority date of the claim---
a provisional specification or by a specification

* (i) In any specification filed in which is treated by virtue of a direction under pursuance of an application for a subsection (4) of section 9 of this Act as a patent made in New Zealand and provisional specification, and the claim is fairly dated within 50 years next before based on the matter disclosed in that specification, the date of filing of the the priority date of that claim shall be the date of applicant's complete filing of the application. specification: (3) Where the complete specification is filed or

*
(ii) In any other document (not proceeded with in pursuance of 2 or more being a document of any class applications accompanied by such specifications as described in subsection (1) of are mentioned in subsection (2) of this section, and section 59 of this Act): the claim is fairly based on the matter disclosed in one of those specifications, the priority date of that

* (c) That the invention, so far as claimed in claim shall be the date of filing of the application any claim of the complete specification, is accompanied by that specification. claimed in any claim of a complete (4) Where the complete specification is filed in specification published on or after the pursuance of a convention application and the priority date of the applicant's claim and claim is fairly based on the matter disclosed in the filed in pursuance of an application for a application for protection in a convention country patent in New Zealand, being a claim of or, where the convention application is founded which the priority date is earlier than that upon more than one such application for of the applicant's claim: protection, in one of those applications, the priority

* (d) That the invention, so far as claimed in date of that claim shall be the date of the relevant any claim of the complete specification, application for protection. was used in New Zealand before the (5) Where, under the foregoing provisions of this priority date of that claim: section, any claim of a complete specification

* (e) That the invention, so far as claimed in would, but for this provision, have 2 or more any claim of the complete specification, is priority dates, the priority date of that claim shall obvious and clearly does not involve any be the earlier or earliest of those dates. inventive step having regard to matter

published as mentioned in S41 Revocation of patent by Court paragraph (b) of this subsection, or having

* (1) Subject to the provisions of this Act, a patent regard to what was used in New Zealand may, on the application of any person interested, before the priority date of the applicant's be revoked by the Court on any of the following claim: grounds, that is to say,---

* (f) That the subject of any claim of the

* (a) That the invention, so far as claimed in complete specification is not an invention any claim of the complete specification, within the meaning of this Act: was claimed in a valid claim of earlier

* (g) That the complete specification does priority date contained in the complete not sufficiently and fairly describe the specification of another patent granted in invention or the method by which it is to New Zealand: be performed:

* (b) That the patent was granted on the

* (h) That, in the case of a convention application of a person not entitled under application, the application was not made the provisions of this Act to apply within 12 months from the date of the first therefor: application for protection for the

*
(c) That the patent was obtained in invention made in a convention country contravention of the rights of the person by the applicant or a person from whom who makes the application to the Court or he derives title: any person under or through whom he

* (i) That, in the case of an application to claims: which an order under section 37 of this

* (d) That the subject of any claim of the Act applies, the failure of the applicant to complete specification is not an invention comply with the requirements imposed on within the meaning of this Act: him by or under this Act within the period

* (e) That the invention, so far as claimed in prescribed by section 19 of this Act and any claim of the complete specification, is every extension of that period granted not new having regard to what was known under that section or under section 93 of or used before the priority date of the this Act was not unintentional: claim in New Zealand:

* (j) That in the case of an application to

* (f) That the invention, so far as claimed in which an order under section 37 of this any claim of the complete specification, is Act applies, there was undue delay in obvious and does not involve any applying for the order: inventive step having regard to what was

* (k) That, in the case of an application known or used before the priority date of under section 93A of this Act, an the claim in New Zealand: extension of time granted by the

* (g) That the invention, so far as claimed in Commissioner was unwarranted,---
any claim of the complete specification, is but on no other ground. not useful: (2) Every such notice shall be given within 3

* (h) That the complete specification does months from the date of the publication of the not sufficiently and fairly describe the complete specification under this Act: invention and the method by which it is to Provided that on application made to him in that be performed, or does not disclose the behalf within the said 3 months the Commissioner best method of performing it which was may extend the prescribed period to 4 months. known to the applicant for the patent and (3) Where any such notice is given, the for which he was entitled to claim Commissioner shall give notice of the opposition protection: to the applicant, and shall give to the applicant and

* (i) That the scope of any claim of the the opponent an opportunity to be heard before he complete specification is not sufficiently decides on the case. and clearly defined or that any claim of (4) The grant of a patent shall not be refused on the the complete specification is not fairly ground specified in paragraph (c) of subsection (1) based on the matter disclosed in the of this section if no patent has been granted in specification: pursuance of the application mentioned in that

* (j) That the patent was obtained on a false paragraph; and for the purposes of paragraph (d) or suggestion or representation: paragraph (e) of the said subsection (1) no account

* (k) [Repealed]
shall be taken of any secret use.

* (l) That the invention, so far as claimed in (5) An appeal to the Court shall lie from any any claim of the complete specification, decision of the Commissioner under this section. was secretly used in New Zealand, otherwise than as mentioned in subsection (2) of this section, before the priority date of that claim:

(m) That the patent has been granted contrary to law. (2) For the purposes of paragraph (l) of subsection (1) of this section, no account shall be taken of any use of the invention---

* (a) For the purpose of reasonable trial or experiment only; or

* (b) By a Government Department or any person authorised by a Government Department, in consequence of the applicant for the patent or any person from whom he derives title having communicated or disclosed the invention directly or indirectly to a Government Department or person authorised as aforesaid; or

* (c) By any other person, in consequence of the applicant for the patent or any person from whom he derives title having communicated or disclosed the invention, and without the consent or acquiescence of the applicant or of any person from whom he derives title,---
and for the purposes of paragraph (e) or paragraph (f) of the said subsection (1) no account shall be taken of any secret use. (3) Without prejudice to the provisions of subsection (1) of this section, a patent may be revoked by the Court,---

* (a) On the application of a Government Department, if the Court is satisfied that the patentee has without reasonable cause failed to comply with a request of the Department to make, use, or exercise the patented invention for the services of the Crown upon reasonable terms; or

* (b) On the application, with the written consent of the Attorney-General, of any person not otherwise entitled to apply under this section. (4) Every ground on which a patent may be revoked shall be available as a ground of defence in any proceeding for the infringement of the patent.

*

S46 Compulsory licence

* (1) At any time after the expiration of 3 years from the date of the sealing of a patent or 4 years from the date of the patent, whichever is the later, any person interested may apply to the Court for the grant of a licence under the patent upon any of the grounds specified in subsection (2) of this section. (2) The grounds upon which a licence may be granted under this section are that a market for the patented invention is not being supplied, or is not being supplied on reasonable terms, in New Zealand. (3) Subject to subsections (4), (5), (6), and (7) of this section, if the Court is satisfied that either of the grounds referred to in subsection (2) of this

section are established, the Court may make an order for the grant of a licence in accordance with the application upon such terms as the Court thinks fit.

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