The New Zealand (NZ) government has recently done “a complete U-turn” on planned trans-Tasman processes in the latest round of patent reforms, as a NZ parliament member puts it. In a second reading with 160 for and 14 against, the latest NZ patents amendments bill was amended to remove the single application process (SAP) and single examination process (SEP) regimes.
Readers of our earlier article may remember that Australia has been patiently waiting since early 2015 for New Zealand to implement the counterpart legal framework to enable the SAP and the SEP.
The latest removal signals the end of the proposed plan to enable patent applicants to apply for Australian and NZ patents in a single application and have them examined by either patent office in a single process.
The change was seeded by the NZ Commerce Select Committee’s revised recommendations back in July 2016 to abandon the SAP and the SEP. The recommendations listed 6 major reasons, with increased costs and lack of demand and benefits being some of them. The Select Committee admitted that revision was needed partly due to insufficient consultation with stakeholders.
In the words of the NZ Minister of Commerce and Consumer Affairs:
When the single patent application and single examination process were first considered back in 2009, they were seen as having the potential to deliver benefits to innovative businesses by protecting their inventions through the filing of patent applications in Australia and New Zealand. It is now clear that, as a result of the passage of time and the development of new international initiatives, implementation of the single patent application and examination processes is unlikely to be used by New Zealand business and, even if they were, would not deliver a net benefit.
While the Australian enabling framework largely sailed through the legislative process, the NZ legislative process was met with last-minute resistance from the local stakeholders and the local profession in general. This contrast seen over the Tasman deserves some brief context, especially for readers unfamiliar with this part of the globe. Achieving closer economic cooperation between Australia and New Zealand is nothing new. Free trade between the two nations started as early as the mid 60’s. The free trade relationship was more properly formalised in the early 80’s for most goods, and in the late 80’s for most services. The tie has since grown into more and more areas relating to and even outside trade, including the Trans-Tasman Mutual Recognition Arrangement (TTMRA), which has facilitated the free flow of skilled personnel since the mid-90’s. Some may even be surprised that the tie goes way back and high up to the Australian Constitution, in which New Zealand is included in its definition of a State the list of former colonies entitled to become states of the Commonwealth of Australia. Against this background, it is difficult to see why intellectual property services should be an area to be treated differently from other kinds of economic relations.
To sum up, for Australian and NZ patent applicants, it will be business as usual.
The remaining trans-Tasman framework relating to patent attorneys remains intact and underway, probably because this is a natural evolution of mutual recognition of each other’s patent attorneys under the TTMRA mentioned above. This includes a unified regulatory approach, which provides a single qualification regime, a single attorney registration, and a single disciplinary tribunal for both Australian and New Zealand patent attorneys. This trans-Tasman framework is expected to commence in February 2017.