scholarly journals The Arguments of Law, Policy and Practice Against Swiss-Type Patent Claims

2001 ◽  
Vol 32 (1) ◽  
pp. 201
Author(s):  
Daniel Armstrong
Keyword(s):  
New Zealand ◽  
Patent Protection ◽  
Policy And Practice ◽  
Patent Laws ◽  
Legal Foundations ◽  
National Patent ◽  
Appeal Decision ◽  
Questionable Existence ◽  
Court Of Appeal

Swiss-type patent claims were first recognised by Switzerland in 1984 as a means of permitting drug manufacturers to gain patent protection following the discovery of a known substance's second or subsequent medical use. Despite dubious legal foundations, particularly the questionable existence of sufficient novelty, Swiss-type claims have been accepted in Europe, England, and, in a recent Court of Appeal decision, New Zealand. Additionally troublesome is that the dominant reason for their acceptance has been the drive for uniformity in national patent laws, a desire that precluded consideration of the various negative practical consequences of accepting such claims. This topic has received little academic comment and this essay redresses that in the most assertive of ways by arguing that Swiss-type claims are illegal, primarily due to a lack of novelty, and that they should be illegal for various reasons of policy and practice.

scholarly journals There is no Such Thing as a Sham Trust

2013 ◽  
Vol 44 (1) ◽  
pp. 115
Author(s):  
BoHao (Steven) Li
Keyword(s):  
New Zealand ◽  
Legal Issues ◽  
Starting Point ◽  
Bilateral Transaction ◽  
Appeal Decision ◽  
The Law ◽  
Trust Law ◽  
Court Of Appeal ◽  
Law Commission

The Court of Appeal decision in Official Assignee v Wilson is the leading New Zealand case on "sham trusts". Obiter, O'Regan and Robertson JJ held that for a sham trust to exist, the settlor and trustee must have a common intention to not create a trust. Post-Wilson, debate continues over the precise elements that render a trust a sham. The Law Commission suggested that the sham doctrine, as a means of analysing the validity of an express trust, may not be the best approach. A better starting point would be a return to the certainty of intention requirement. In arguing that the Law Commission's recommendation is correct, this article will discuss three legal issues: whether an express trust is a unilateral or bilateral transaction; whether the excluded evidence has always been part of the objective intention requirement; and whether the legislative and policy factors have made foreign trust law distinct from New Zealand trust law. Finally, this article will expand on the test proposed by the Law Commission.

scholarly journals Should Pension Savings Be a Protected Property at Bankruptcy?

2017 ◽  
Vol 17 (1) ◽  
pp. 97
Author(s):  
Trish Keeper
Keyword(s):  
New Zealand ◽  
Test Case ◽  
Business Innovation ◽  
Discussion Document ◽  
Appeal Decision ◽  
The Law ◽  
Court Of Appeal

In 2015, the New Zealand Court of Appeal held, in Trustee Executors Ltd v The Official Assignee,[1] a test case brought by the Official Assignee (OA), that the OA could not access the KiwiSaver balances of a bankrupt. In response, the Ministry of Business, Innovation and Employment released a Discussion Document in July 2016, proposing a law change to make some, or all, of a bankrupt’s pension savings available to the OA for the benefit of a bankrupt’s creditors. This article outlines the Court of Appeal decision and its implications within the context of both the New Zealand Insolvency Act 2006 and the KiwiSaver Act 2006. It then critically discusses the law change proposed in the Discussion Document and suggests that, given the significant difficulties with this proposal, more limited reforms be implemented to prevent bankrupts unfairly using the inalienability of pension savings to defeat the interests of creditors. [1] [2015] NZCA 118.

Legal Consequences of Animal Hoarding in New Zealand

2016 ◽  
Vol 80 (4) ◽  
pp. 237-240
Author(s):  
Anita Killeen
Keyword(s):  
Mental Health ◽  
New Zealand ◽  
Legal System ◽  
Animal Cruelty ◽  
Legal Responsibility ◽  
The Past ◽  
Appeal Decision ◽  
Court Of Appeal ◽  
Legal Consequences

A 10-year prohibition against a defendant from owning or exercising authority over any animals has been upheld by the New Zealand Court of Appeal in an animal hoarding case which has progressed through the New Zealand legal system over the past 5 years. This comment reviews the Court of Appeal decision ( Kondratyeva v R CA6/2015 2015] NZCA 266 [23 June 2015]) and explores the increasing evidence of a mental health component in animal hoarding behaviour. It also discusses the stress and burden that animal hoarding cases places on the shelters that have the legal responsibility for prosecuting animal cruelty cases in New Zealand.

scholarly journals Takamore v Clarke: An Appropriate Approach to the Recognition of Maori Custom in New Zealand Law?

2013 ◽  
Vol 44 (1) ◽  
pp. 141 ◽  
Author(s):  
Laura Lincoln
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Case Note ◽  
Customary Law ◽  
Modern Approach ◽  
Majority Judgment ◽  
The Common ◽  
Appeal Decision ◽  
Court Of Appeal

This article reads as an extended case note on the majority judgment of the 2011 Court of Appeal decision, Takamore v Clarke. This case highlighted the tension between the application of the common law relating to burial and the application of Māori custom, and presented the Court of Appeal with difficult questions regarding the recognition of Māori custom by the common law. The majority treated Māori custom as analogous to English local custom, calling for the custom to meet a list of requirements in order to be recognised as part of the New Zealand common law. The Court held that Tūhoe burial custom did not meet all of the requirements for recognition and so could not be recognised. Nevertheless, with the view that custom should still be taken into account, the Court proposed a "more modern" approach to customary law. This article begins by considering the appropriateness of the analogy drawn by the Court to English local custom, with reference to the historical judicial application of Māori custom in New Zealand. It then critically analyses the application of the authorities cited by the Court. Finally, this article explores the effect of the majority's "more modern" approach on the treatment of Māori custom in New Zealand law. The article contains a postscript pertaining to the Supreme Court's more recent decision.

scholarly journals Traditional Knowledge and Patent Protection: Conflicting Views On International Patent Standards

2017 ◽  
Vol 13 (4) ◽  
pp. 93 ◽  
Author(s):  
Adam Andrzejewski
Keyword(s):  
Traditional Knowledge ◽  
Patent Protection ◽  
Plant Genetic Resources ◽  
Patent Law ◽  
International Standards ◽  
International Patent ◽  
Patent Laws ◽  
Protection Systems ◽  
National Patent ◽  
And Control

As diseases continue to spread around the globe, pharmaceutical and biotech companies continue to search for new and better drugs to treat them. Most of these companies have realised that useful compounds for these purposes may be found in the natural resources that indigenous and local communities use. And yet, even though the importance of these biological resources to global health and economic livelihood is well recognised, the legal ownership and control of this traditional knowledge is still very controversial. This article undertakes a comparative analysis of American and European, as well as international legal regulations on patent law and traditional knowledge. Key questions include: What is traditional knowledge? How have the national patent laws of these countries treated the protection of plant variety and plant genetic resources? What are the existing international standards for patents, and what implications do they have for protecting traditional knowledge? And finally, what protection systems are emerging for the future?

The Influence of TRIPS Compliant Patent Laws on Indian Pharmaceutical Industry

2014 ◽  
Vol 4 (1) ◽  
Author(s):  
Rupesh Rastogi ◽  
Virendra Kumar
Keyword(s):  
Pharmaceutical Industry ◽  
Patent Protection ◽  
Uruguay Round ◽  
Pharmaceutical Products ◽  
Trips Agreement ◽  
Patent Law ◽  
Patent Laws ◽  
The Impact ◽  
First Time ◽  
Indian Pharmaceutical Industry

The first legislation in India relating to patents was the Act VI of 1856. The Indian Patents and Design Act, 1911 (Act II of 1911) replaced all the previous Acts. The Act brought patent administration under the management of Controller of Patents for the first time. After Independence, it was felt that the Indian Patents & Designs Act, 1911 was not fulfilling its objective. Various comities were constituted to recommend, framing a patent law which can fulfill the requirement of Indian Industry and people. The Indian Patent Act of 1970 was enacted to achieve the above objectives. The major provisions of the act, provided for process, not the product patents in food, medicines, chemicals with a term of 14 years and 5-7 for chemicals and drugs. The Act enabled Indian citizens to access cheapest medicines in the world and paved a way for exponential growth of Indian Pharmaceutical Industry. TRIPS agreement, which is one of the important results of the Uruguay Round, mandated strong patent protection, especially for pharmaceutical products, thereby allowing the patenting of NCEs, compounds and processes. India is thereby required to meet the minimum standards under the TRIPS Agreement in relation to patents and the pharmaceutical industry. India’s patent legislation must now include provisions for availability of patents for both pharmaceutical products and processes inventions. The present paper examines the impact of change in Indian Patent law on Pharmaceutical Industry.

Fracturing Constitutional Rights: The Prosecution of Alleged Broadcast Infringers in Nigeria

2020 ◽  
pp. 1-15
Author(s):  
Bankole Sodipo
Keyword(s):  
Civil Liability ◽  
Copyright Infringement ◽  
Law Reform ◽  
Constitutional Rights ◽  
Appeal Decision ◽  
Written Law ◽  
Court Of Appeal ◽  
Material Form

Abstract Infringement of broadcasts is often treated as a crime. The Nigerian Constitution guarantees that no-one can be prosecuted for any act that is not prescribed in a written law. Section 20 of Nigeria's Copyright Act only criminalizes dealing with infringing copies. A “copy” is defined in terms of material form. An infringing broadcast therefore connotes a recorded broadcast or a copy of a broadcast. This article argues that, statutorily, not every act that gives rise to civil liability for broadcast copyright infringement constitutes a crime. The article reviews the first broadcast copyright prosecution Court of Appeal decision in Eno v Nigerian Copyright Commission. Eno was unlawfully prosecuted, convicted and imprisoned. The article seeks to stem the wave of prosecutions on the type of charges used in Eno. In the absence of law reform, the prosecutions based on the line of charges in Eno constitute a fracturing of constitutional rights.

Health(y) education: A critical analysis of the role of public health regulation in and on tertiary education in Aotearoa New Zealand

2021 ◽  
pp. 147821032199501
Author(s):  
Susan Shaw ◽  
Keith Tudor
Keyword(s):  
Public Health ◽  
New Zealand ◽  
Critical Analysis ◽  
Tertiary Education ◽  
Power Dynamics ◽  
Policy And Practice ◽  
Educational Design ◽  
Aotearoa New Zealand ◽  
Public Health Regulation

This article offers a critical analysis of the role of public health regulation on tertiary education in Aotearoa New Zealand and, specifically, the requirements and processes of Responsible Authorities under the Health Practitioners Competence Assurance Act for the accreditation and monitoring of educational institutions and their curricula (degrees, courses of studies, or programmes). It identifies and discusses a number of issues concerned with the requirements of such accreditation and monitoring, including, administrative requirements and costs, structural requirements, and the implications for educational design. Concerns with the processes of these procedures, namely the lack of educational expertise on the part of the Responsible Authorities, and certain manifested power dynamics are also highlighted. Finally, the article draws conclusions for changing policy and practice.

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