Godfrey Livingstone: Methods need patent shelter

New Zealanders own patents for some incredibly inventive but terribly down-to-earth ideas for making farming easier and more profitable.

The disposable syringe and improved drenching guns of Colin Murdoch are great examples.

But not all farming innovations involve new machinery and equipment capable of patent protection.

It is only recently that the doors have opened to allow some new farming methods and technology to qualify for patent protection as well.

Many innovations in agriculture involve a wide variety of advanced methods and technology used in farming. Farm management techniques and methods such as rotational grazing, strip grazing, aerial spraying, aerial-assisted mustering and live stock monitoring all involved some great thinking.

Significant research dollars and time go into improving New Zealand farming methods, resulting in higher productivity and profitability, and provide as much a competitive advantage for NZ farmers as any new piece of machinery or apparatus.

The difference is that, generally, patent protection for improved machinery is more readily available than protection for an improved method of administering, managing or operating a farm. Without the ability to protect innovations in farming methods, innovations that improve productivity and profitability can be copied by competitors without rewarding the inventor.

But these improvements, provided they are inventive, can be protected by patents in some countries. At present the United States is the main country that allows such patents. An example of technology that can be patented in the US is one on determining meat quality of a live animal issued to New Zealand's Horticulture and Food Research Institute. The technique uses pH levels to give an indication of an animal's stress.

But in New Zealand, under the current Patents Act and the proposed Patents Bill, business method inventions - including techniques used in doing or conducting business or processing financial data - are considered to be "mere schemes and plans", and therefore unpatentable.

However, business methods that require computer-implementation are generally considered patentable - farm management software is an example. But other inventive techniques or methods that do not require computer implementation appear to be excluded.

In Australia, business method patents are allowable if the method creates an "artificial state of affairs". This, in effect, means that if the method is computer-implemented or has some computerisation, it can be patented. But the Australian Government has apparently accepted recommendations that a new business method should be inherently patentable with or without computerisation.

In the US, a patent has been granted to a system involving hardware, software and business processes for developing an optimal custom farm management plan, for crop selection, acreage allocation, and resource management strategy. As it includes computerisation, such a system would be patentable in New Zealand and Australia as well.

To succeed in the modern international economy, it is important agricultural innovators know that not only the traditionally patented inventions are allowed protection.

Exporting Kiwi know-how without protection is risky as competitors will very quickly learn and become ferocious competitors.

The knowledge, technology and methods developed by our farmers should be protected as much as possible in order that the local benefits of inventions are maximised and innovation encouraged.

* Godfrey Livingstone is a lawyer in A.J. Park's Auckland office specialising in patents.