A.B. Shaw considered England and America to be “two countries divided by a common language”. I doubt he would have said the same of Australia and New Zealand.
Australia and NZ, unlike Shaw’s England and America, possess more in common than the language. Shared attributes include wonderful wildernesses, great food and wine, and an obsessive interest in sport – and the list is set to grow. Legislation currently before parliament would give both countries a common patent attorney profession and, more importantly, a single patent application and examination process.
The move towards unification of the Australian and NZ patent systems has been long in the making. Beginning 30 years ago with the signing of the Closer Economic Relations Trade Agreement, the two countries have sought market harmonisation wherever possible. The target of harmonisation was extended to patents in 1998, with mutual recognition of the attorney professions. The trans-Tasman Single Economic Market agenda of 2009 introduced the objective of a single patent examination process.
What is the significance of the latest reforms? History suggests that while the individual impacts will be small initially, over time the cumulative effect will be substantial.
The move to a common patent attorney profession will mean that NZ attorneys in the future, like Australian attorneys currently, must have a technical academic qualification. However, it is unlikely to result in a major change in the structure of professional practices on either side of the Tasman. The merging of Australian and NZ firms was made possible by the earlier reform of mutual recognition. That reform saw only one (short-lived) trans-Tasman merger. I think most practices will do as my firm has done for many years: remain based in one country, but prepare and file patent applications for both jurisdictions.
The impact of the move to a single application and examination process is likely to be more profound. Under the process, an applicant can file in one country an application for a patent in the other country, and an examiner in one country can examine an application for a patent in the other country. However, the process does not create a single patent covering both countries – each country will continue to grant patents under its own legislation.
The explanatory memorandum to the Bill states the process “will reduce duplication, leading to increased efficiencies and potential cost savings for inventors and users of the patent system”. Whether these desirable outcomes will eventuate remains to be seen. What seems clear, however, is that there will be an increased incentive within the patent offices, and hence within the legislatures, of the two countries to harmonise as much as possible both the procedure and the law of their respective patent systems.
If such harmonisation eventuates, the ultimate outcome may be a trans-Tasman unitary patent in all but name. Will an Antipodean Shaw of the future opine “Two countries united by a common patent application system”?