New Zealand tightens examination of legacy divisional patent applications
The New Zealand Parliament has passed the Patents Amendment Bill, which introduces targeted changes to the way certain divisional patent applications will be examined.
The changes affect any divisional application which was filed after 5 June 2026 and is governed by the long-repealed Patents Act 1953 (sometimes referred to as “1953 Act divisionals”). Although the Patents Act 2013 has superseded the 1953 Act for more than a decade, transitional provisions in the 2013 Act have allowed divisional applications derived from pre-2013 Act patent filings to continue being examined under the earlier 1953 Act regime.
Under the amended legislation, a 1953 Act divisional will only be accepted if, on the balance of probabilities, the claimed invention meets the 2013 Act standards for novelty, inventive step (obviousness), and support in the patent specification. These requirements also apply in opposition proceedings concerning those applications.
The 1953 Act has significantly lower standards for acceptance compared to the 2013 Act in three key ways. First, a patent application made under the 1953 Act is not examined for inventive step (obviousness). Second, the 1953 Act has a narrower novelty assessment than the 2013 Act. The 1953 Act assesses novelty against a prior art base that is confined to information made publicly available in New Zealand, whereas the 2013 Act assesses novelty against a broader prior art base including information made publicly available anywhere in the world. Third, the 1953 Act requires that claims are “fairly based” on the disclosure of the invention in the patent application, whereas the 2013 Act sets a higher (and more internationally harmonised) standard of “support”.
The law change should therefore prevent new 1953 Act divisionals from being accepted unless they satisfy the substantive requirements for novelty, inventive step and support of the 2013 Act.
For those with patent applications affected by the law change, any intended divisional filings from 1953 Act applications should be reviewed urgently. For others, especially those innovating and manufacturing in New Zealand, the law change is likely to be welcome because it will provide stronger tools for challenging 1953 Act divisionals that are accepted or granted after commencement.
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This article presents a significant shift in how New Zealand handles divisional patent applications, particularly those related to the 1953 Act. The introduction of stricter standards aligns more closely with global norms, potentially fostering a more robust innovation environment. However, the transition may cause confusion for applicants unfamiliar with the implications of the 1953 Act divisional scenario, especially if their claims do not meet the new criteria. Jonny Jackpot could serve as a case study in navigating these complexities.
The passing of the Patents Amendment Bill marks a significant shift in how divisional patent applications will be evaluated in New Zealand. The update to 1953 Act divisionals introduces a layer of scrutiny that aligns more closely with the contemporary 2013 Act standards. This change could effectively limit the acceptance of divisionals, thus altering the landscape for patent holders who have previously relied on the 1953 Act. It raises questions about the balance between fostering innovation and ensuring rigorous patent examination, ultimately affecting entities across the spectrum. The implications of this amendment on intellectual property rights warrant careful consideration in future patent strategies, especially in industries heavily reliant on patents, such as technology and pharmaceuticals. The transition could also influence…
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