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Legislative Implementation of Flexibilities - New Zealand

Title:Sections 132 to 139 of the Patents Act No. 68 of 2013
Field of IP:Patents
Type of flexibility:Security exceptions
Summary table:PDF

Provisions of Law

Provisions for secrecy of certain inventions

132 Directions in relation to inventions concerning defence

(1) The Commissioner may give any of the directions described in subsection (2) if-

(a) a patent application has been made for an invention either before or after the commencement of this section; and

(b) the invention is, in the opinion of the Commissioner,-

(i) one of a class notified to the Commissioner by the Minister of Defence as relevant for defence purposes; or

(ii) likely to be valuable for defence purposes.

(2) The directions are directions-

(a) for prohibiting or restricting the publication of information concerning the invention; or

(b) for prohibiting or restricting the communication of information concerning the invention to a person or class of persons specified in the directions.

(3) While the directions are in force,-

(a) the patent application may, subject to the directions, proceed up to the acceptance of the complete specification; and

(b) the patent application and the complete specification must not become open to public inspection; and

(c) a patent must not be granted in relation to the patent application.

133 Commissioner must give notice to Minister of Defence

If the Commissioner gives directions under section 132, the Commissioner must give notice of the patent application and of the directions to the Minister of Defence.

134 Minister of Defence must consider whether publication would be prejudicial to defence of New Zealand

(1) The Minister of Defence must,-

(a) on receipt of a notice under section 133, consider whether the publication of the invention would be prejudicial to the defence of New Zealand; and

(b) unless a notice under subsection (3) has been given to the Commissioner, reconsider that question before the expiry of 9 months from the filing date of the patent application and at least once in every subsequent year.

(2) For the purposes of subsection (1), the Minister of Defence may, at any time after the complete specification has been accepted or, with the consent of the applicant, at any time before the complete specification has been accepted, inspect the patent application and any documents provided to the Commissioner in connection with that application.

(3) If, on consideration of the invention at any time, it appears to the Minister of Defence that the publication of the invention would not, or would no longer, be prejudicial to the defence of New Zealand, the Minister of Defence must give notice to the Commissioner to that effect.

135 Commissioner must revoke directions on receipt of notice from Minister of Defence

On receipt of a notice under section 134, the Commissioner-

(a) must revoke the directions given under section 132; and

(b) may, subject to any conditions that the Commissioner thinks fit, extend the time for doing anything required or authorised to be done by or under this Act in connection with the patent application, whether or not that time has previously expired.

136 Acceptance of complete specification while directions in force

(1) This section applies if a complete specification filed for a patent application for an invention for which directions have been given under section 132 is accepted while the directions are in force.

(2) If any use of the invention is made while the directions are in force by, on behalf of, or to the order of a government department, subpart 6 of Part 4 applies to that use as if the patent had been granted for the invention.

(3) If it appears to the Minister of Defence that the applicant for the patent has suffered hardship by reason of the directions being in force, the Minister of Finance may pay to the applicant an amount by way of compensation that the Minister of Finance considers is reasonable.

(4) For the purposes of subsection (3), the Minister of Finance must have regard to-

(a) the novelty and usefulness of the invention; and

(b) the purpose for which the invention is designed; and

(c) any other relevant matters.

137 Maintenance fees and renewal fees not payable while directions in force

(1) No maintenance fees are payable for any period during which directions that are given under section 132 are in force.

(2) No renewal fees are payable for any period during which directions that are given under section 132 are in force if a patent is granted for an application for which directions have been given.

138 Offence to fail to comply with directions

(1) Every person who fails to comply with a direction given under section 132 commits an offence if, at the time of the failure, the person knew or ought to have known that a direction had been given.

(2) Every person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 2 years, to a fine not exceeding $20,000, or to both.

139 Liability of directors and managers if body corporate commits offence

If a body corporate is convicted of an offence against section 138, every director and every person concerned in the management of the body corporate is guilty of the offence if it is proved-

(a) that the act that constituted the offence took place with his or her authority, permission, or consent; and

(b) that he or she-

(i) knew, or could reasonably be expected to have known, that the offence was to be or was being committed; and

(ii) failed to take all reasonable steps to prevent or stop it.

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