Our August 1999 Newsletter (N.S. 191) reported denial of judicial review of a decision by the New Zealand Intellectual Property Office to grant so-called Swiss form patent claims covering the use of an old compound for production of a medicine for a particular disease or condition where novelty was found only in the disease or condition for which the medicine was intended to be used. However, action on such claims was suspended pending an appeal. The New Zealand Court of Appeal has now upheld the first instance denial of judicial review, holding that in principle Swiss form claims are patentable in New Zealand. The Court distinguished such claims from method of treatment claims, which are apparently still not acceptable in New Zealand, on the ground that in Swiss form claims the infringer will not be a medical practitioner but the producer of the medicine for the stated purpose. In the medical field, in view of the regulatory regime which controls the supply of pharmaceutical products, it should be possible to determine the intended use of the medicine so that it should be possible to determine whether or not a particular act of manufacture was an infringement.

There remains the possibility of a further appeal to the Privy Council.