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3 responses to 'DOES NEW ZEALAND NEED INNOVATION PATENTS?'

Adoption of a utility patent system similar to the Australian Innovation Patent system has advantages and disadvantages: Advantages are: it is relatively inexpensive compared to a standard patent (filing fees are cheaper and examination fees are not payable before grant); it is granted quickly (within 1 month versus up to 5 years for a standard patent); it can be relatively difficult for a third party to have a granted innovation patent revoked Disadvantages are: reduced term of 8 years versus 20 years for a standard patent; reduced number of claims (5 compared to unlimited for a standard patent); cannot be enforced until it has been examined and certified-this can make an unexamined innovation patent more difficult to license or assign (sell). However third parties who request examination must pay half the examination fee; as most overseas countries do not have an equivalent utility patent, then filing an equivalent patent based on an innovation patent would be difficult. On balance, as a large proportion of New Zealand businesses are SME’s which need to see a relatively quick ROI and minimise financial and commercial risks involved with early research and development, then such a utility patent system would be beneficial in addition to the standard patent system.

This is something I would like to see introduced. There are a large number of New Zealand patents which have managed to proceed to grant based on the fact that they are "novel" over the prior art found by the patent examiner. These patents, while they may not cut it on the international stage, have helped many New Zealand businesses get a foothold in the local market place and launch their product or service with reduced risk of direct competition. Once the new Patents Act is introduced, applicants will have to show both novelty and "inventiveness" over the prior art - which basically means the bar for patentablility will be raised. Under the new test, many patent applications that would have been granted under the current 1953 Act will either no longer be considered patentable, or may only be granted with a significantly reduced scope. Introducing an innovation patent system will provide another option - a cheaper alternative to a full patent that can protect innovations which may not pass the new "inventiveness" test, while still providing a potential 8 year monopoly over competitors.

In the event that New Zealand did adopt a form of protection similar to the Australian "innovation patent", let's hope Australia's mistake is not repeated. Rather than the patent being "granted" after a formality check - thus confusingly resulting in 2 utterly different types of granted patent in Australia, perhaps New Zealand could sensibly designate the unenforceable publication an "Innovation certificate" (or the like). Then only after optional examination is sucessfully negotiated - the patent could be sensibly referred to as a "Granted Innovation Patent". It seems political expediency came before common sense in Australia! How it helped SMEs in Australia to have a granted patent under which rights were not "granted" at all, but rather provided the applicant with a "place holder publication" is a continuing mystery. Confusion reigns and patent attorneys potentially prosper.