Tuesday, July 5, 2011

Streamlined trans-Tasman process for patent applications

Today the New Zealand and Australian Governments announced a streamlined process for securing patent rights in New Zealand and Australia.  The implementation plan promises a single application process for both countries by early 2013 and a single patent examination by June 2014.

I talked to a Business Journalist from Radio New Zealand about the issue.

Readers of this blog will know that there is no world-wide patent.  A New Zealand inventor must file individual applications in each country of interest.  This initiative is aimed at cutting red tape.  What it will mean for New Zealand patent applicants is that they will have one less form to fill in if they want to cover Australia.

One examiner will examine both applications.  This makes sense for novelty and obviousness assessments.  It is potentially more efficient for the same examiner to deal with both applications than have an examiner on each side of the Tasman perform the same novelty and obviousness assessment on the same subject matter.

There is the potential to deliver what is known as a net trans-Tasman benefit.  Sharing services for greater efficiency.

This presupposes that the laws are going to be the same.  They are not.  New Zealand examiners do not examine for obviousness.  They assess inventions under a local novelty regime rather than world-wide novelty.  The prior art base in New Zealand is published documents and does not include prior use.

I have said in an earlier post that the New Zealand Patents Bill 2008 will not be proceeding this year.  To meet the stated implementation deadline of 2013 the Bill will need to be pushed through in 2012.

Once enacted it will bring New Zealand’s IP regime closer to Australia’s in some areas but further away in others.  Novelty and obviousness assessment will be similar.  But the proposed subject matter exclusions in the New Zealand Bill will take us further away from Australia.

The result of this, if the New Zealand Bill goes through unamended, is that examiners on both sides of the Tasman will need to learn two sets of laws.  The obvious answer is to amend the Bill to align our New Zealand legislation with Australia.  That is the only way I can see for us to “remove duplication, drive efficiencies and reduce costs”.

The devil is going to be in the detail.

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