Browsing by Author "Upperton, Ruth"

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Should the New Zealand Parliament Allow the Intellectual Property Office of New Zealand to Continue to Grant Patents for Isolated Human Genes?
(Te Herenga Waka—Victoria University of Wellington, 2012) Upperton, Ruth
"The good patent gives the world something it did not truly have before, whereas the bad patent has the effect of trying to take away from the world something which it effectively already had." In each cell of each human body, and in the cells of almost all other living things on Earth, we find deoxyribonucleic acid, or DNA. DNA is a large molecule consisting of two strands of covalently bonded nucleotides, held together in a double helix structure by the weaker hydrogen bonds between the strands. Each nucleotide contains a nucleobase, and every three nucleobases code for an amino acid. A string of amino acids make up a protein, and proteins make up the human body. A sequence of amino acids that codes for a particular characteristic of the human body is called a gene. Scientists can isolate a gene from the rest of a person’s DNA, so it exists as a single strand of nucleotides, with its covalent bonds broken at either end. Gene isolation was originally a complex procedure, but today is mostly automated and can be done quickly. The Intellectual Property Office of New Zealand (IPONZ) has granted patents for isolated human genes. However, IPONZ has not released any guidelines on how it approaches patent claims for any kind of genetic material, and there has been no case law on the question of whether IPONZ should be granting these patents or not. We in New Zealand are in a unique position to decide whether or not we want to allow patents over isolated human genes, as our current patent system does not fully examine patents before granting them, making all patents conditional on later decisions.9 The United States biotechnology sector is much more advanced than ours, and the US patent system has proved destructive that sector, driving up the cost of diagnosis and inhibiting research. We need to learn from their example and establish a law of gene patenting that encourages innovation, ensures access to healthcare, and is consistent with our patenting law as a whole. In this paper I aim to determine the approach New Zealand intellectual property law should take to the patenting of isolated human genes. I will first analyse the New Zealand law on patentable subject matter, and then the tests US courts have used to determine the patentability of isolated genes, as there is no New Zealand case law on this specific issue. I will then determine which test is best for New Zealand and how it would apply to isolated human genes. I will then examine further legal issues in this field: the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the Patent Act 1953’s morality exemptions, as well as the related exemption from patentability for methods of medical treatment and diagnosis practiced on humans. Having examined the legal issues, I will then consider policy. Does patenting in the field of biotechnology inhibit or encourage research? Do gene patents drive up the costs of genetic tests? I will also attempt an overview of Māori objections to gene patents as voiced in the Wai 262 report, bearing in mind that Māori objections to intellectual property law are much broader than the scope of this paper.
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A Truly No-Fault Approach to Treatment Injury Cover in Accident Compensation
(Te Herenga Waka—Victoria University of Wellington, 2013-01-01) Upperton, Ruth
New Zealand’s accident compensation system is ‘no-fault’, meaning that New Zealanders are compensated for their injuries whether or not they can find someone to blame for their misfortune. However, until 2005, claimants injured while receiving medical treatment had to show either that their injuries were caused by negligence, or that their injuries were both rare and severe. The negligence standard was taken from tort law, and required the claimant to show that the injury was a registered health professional’s fault. This fault requirement created many of the problems that tort law had in the past: it was inefficient, arbitrary, and created a blaming culture that bred hostility between the Accident Compensation Corporation (ACC), the injured, and health professionals. In 2004, ACC published a review of the medical misadventure provisions, calling for them to be replaced by no-fault compensation provisions in line with the spirit and content of the rest of the accident compensation scheme. In 2005, medical misadventure became treatment injury, and both application and acceptance rates rose for claims concerning injuries received during medical treatment. However, the treatment injury provisions still contained fault elements, despite the legislature’s claim that the provisions were no-fault. In this paper, I will address the role of fault in a compensation scheme for those injured during medical treatment. First, I will define fault in its tort law context and outline some strengths and weaknesses of fault as a legal concept. Then, I will provide a short overview of New Zealand’s accident compensation scheme, the medical misadventure provisions, the push for reform, and the structure of the treatment injury provisions. This will give background to an in-depth discussion of the treatment injury provisions’ incorporation of fault standards. Also relevant to this discussion is the accident compensation scheme’s reporting mechanism, which potentially complicates ACC’s role as purely an injury compensating, preventing and rehabilitating body. Finally, it is necessary to consider whether compensation itself is inherently fault-based, an argument raised by some commentators. My conclusion is that some aspects of the treatment injury provisions still use fault to determine cover in some situations. The provisions give particular weight to the fault of the claimant in causing her own injury. This use of fault standards can be removed from the treatment injury provisions with some minor amendments, which are set out at the end of this paper.