New Zealand and Australia have a close relationship, both culturally and in business. Australians often refer to New Zealand as the seventh state of Australia, and New Zealanders to Australia as their third, most westerly island. Historically, however, the two countries have had relatively independent patent laws and practice. This began to change in 1998 when both countries implemented laws allowing patent attorneys registered in one country to register in the other. This process of cooperation has continued with recent announcements by the Governments of each country of a Single Application Process and a Single Examination for applications filed in both countries.
The Single Application Process is an agreement that each country will allow for online filing of patent applications for the same invention in both countries in a single transaction. The reduced number of steps proposed to obtain the two patent applications has the potential to result in reduced overall costs to applicants. This, in turn, may lead to an increase in the number of patent filings in each country. It is important to note that it is intended that two separate applications are filed under the laws of each country, rather than a single cross-country application.
The Single Examination concept is intended to reduce duplication of examination for applications filed in both countries for the same invention. The aim is for a single examiner from one country to examine the two applications concurrently, thereby allowing for a more efficient examination of both applications. However, each application will be examined under the relevant country’s law, albeit that they differ in certain respects, for example in regard to inventive step. Ultimately, the measure of success of the Single Examination concept will be whether the efficiency gained by only requiring a single examiner to be familiar with the subject matter of the two applications is greater than the complexity introduced by requiring examination to be undertaken in light of two different patent laws.
Before either system is introduced, it is understood that the New Zealand Parliament will have to pass the Patents Bill 2008 which updates New Zealand patent law and practice including the introduction of inventive step as a ground of examination.
Finally, although it is unlikely to occur for some time, there is also intent by the governments of Australia and New Zealand to merge the professions of the two countries, such that there will be a single body for the registration, training, and discipline of the patent professions.