New Zealand patent applications – time for a re-think?


New Zealand, with its remote geographical location and relatively small population, can sometimes be overlooked by patentees. However, there are compelling drivers for considering, and indeed pursuing patent protection in New Zealand.

For starters, New Zealand is consistently ranked one of the easiest countries in which to do business (The World Bank, 2017), Spruson & Ferguson and renowned as one of the world’s least corrupt economies (Corruption Perceptions Index, 2016).  It has a strongly Westernised consumer culture, a deregulated labour force and economy – and through ongoing harmonisation initiatives, is closely aligned with Australia (and now, by virtue of the CPTPP, much of the Pacific Rim) in respect of trade.

In respect of patent protection, New Zealand is relatively quick, easy and low cost.  Patentees are unlikely to be stuck in limbo for any significant time whilst their application is being considered; one tends to know where they stand within 6 to 12 months.  Compare this with the average patent pendency across the major offices around the world and there’s a certain attraction that should be immediately apparent.

That said, a relatively quick grant is only really attractive where it’s supported by an economy that facilitates the effective exploitation of a patent right.  In this respect, New Zealand offers some unique opportunities:

  • The cost of obtaining patent protection in New Zealand is relatively inexpensive. In New Zealand it is generally possible to obtain a granted patent for around US$5000, depending on the technology and nature of any rejections raised during examination.
  • An effective test market for new and emerging technologies (soft product launches). New Zealand is a Westernised, technology-savvy market known for its early adoption of new technologies.  Given its geographic isolation and small population, it is actually an ideal place to test a new technology in terms of rate of adoption, quality and useability. Further, it is perfect for exploring alternative routes to market for a new technology.
  • Modernised patent regime delivering just outcomes. New Zealand’s patents regime is one of the world’s most modern.  The Patents Act 2013 borrows from US, European and Australian laws to provide legislation uniquely suited to New Zealand’s social, political and economic standards.
  • Early patent examination and grant. Under the Patents Act 2013, examination typically commences within 12 months of national phase entry, with patent grant often following within a further 12 to 18 months.
  • Effective test bed for litigation. Economies of scale dictate that New Zealand should be a relatively cost-effective test bed for patent litigation.  An efficient legal process aids in this impression, as does the persuasive standing of various US, European and Australian precedent cases.
  • Divisional applications for both offensive and defensive purposes. The time-limited facility to retain a pending divisional application enables a patentee to fine-tune the scope of its monopoly should an infringer subsequently enter the market.  A divisional application may also provide scope to amend should an opposition or revocation action be initiated by a competitor.
  • Gateway to Asia via free trade agreements. New Zealand has bilateral FTAs with China, Japan, Korea, Malaysia, Singapore, Thailand, as well as multilateral agreements with the ASEAN bloc and more recently, the CPTPP countries.
  • Diverse technology sphere in which New Zealand is a significant world player. Contrary to popular belief, New Zealand is not all meat, fish, dairy and forestry.  Although these industries form the backbone of the economy, New Zealand is also an emerging hotbed for veterinary science, boatbuilding, film, hi-tech and digital industries.

Although many recognise that New Zealand is a land abounding in opportunity, this impression has not always extended to the patent space.  We hope that the above information stimulates a re-think.

Spruson & Ferguson is a “Trans-Tasman” firm – we practise in both Australia and New Zealand.  We are intimately familiar with the commercial landscape in both countries and can provide clients with a wealth of expertise in both jurisdictions.

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