Wednesday, July 6, 2011

When is a closed day a closed day?

Last week I represented my firm at a Business Continuity meeting called by the Intellectual Property of New Zealand (IPONZ).  The impetus for this meeting was a hardware failure back in May that disabled online services for a day and a half.

Under our existing legislation the Commissioner is empowered to declare the Patent Office closed for the transaction of public business on any day.  If a deadline for doing any act falls on a closed day then the act is deemed to be in time if done on the next day on which the Patent Office is open.

Weekend days, statutory public holidays, and the days within a short interval between Christmas and New Year’s Eve are all declared in advance to be closed days.

The Commissioner can also close the Patent Office at short notice because of an emergency or other temporary circumstance.

The dilemna IPONZ management faced back in May was whether or not to declare IPONZ closed once their online services were unavailable.  The problem here was that the failure occurred around midday.  There was a risk that stakeholders may have already used online services in the morning and would be relying on a filing date for that day.  To declare IPONZ closed would disadvantage those people as they would no longer get the filing date they needed.

I suggested that IPONZ keep the Patent Office open wherever possible, but to make it easier for stakeholders to use alternative methods.  The Patent Office physically closes at 5pm.  In an emergency situation the Office could stay open later than 5pm to allow local firms to hand deliver documents.  Our Wellington Office is only 15 minutes walk from IPONZ so that would suit us just fine.

Some of our critical filing dates involve filing an application in New Zealand ahead of an imminent disclosure.  It is absolutely essential that we get the correct filing date in these situations.  In our firm we are both Australian and New Zealand patent attorneys.  We could just as easily file new applications in Australia to establish a filing date.

What is stopping us is the requirement in the New Zealand legislation to obtain a foreign filing permit in advance of a foreign patent filing.  I suggested that, in an emergency situation, IPONZ could grant blanket permission for New Zealand resident applicants to file applications in Australia.

From here we need to work with the legislation we have.  We also need to make sure that our New Zealand Patents Bill 2008 addresses the issues raised in our meeting.  If it doesn’t then now is the time to make those amendments before it is passed into law.

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