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This article is focused on New Zealand law and explains issues from a Common law perspective.
How to obtain a patent within New Zealand
Applications for patents are made to the NZ Intellectual Property Office. There are set forms for this, and you must pay a fee.
What is a patent?
A patent is a legal device that can be obtained to prohibit others from making, using or selling an invention that you can claim as original, novel and not already in existence.
Patents are governed by the Patents Trans-Tasman Patent Attorneys and Other Matters Amendment Act 2016. Patents are administered in New Zealand by the Intellectual Property Office, which is in Lower Hutt, Wellington.
Who is eligible to apply for a patent?
An application for a patent may be made by the person who claims to be the true and first inventor of the invention, or by a person to whom the inventor has assigned the right to make the application. You may apply either separately or jointly with another person.
Note that firms, partnerships and other unincorporated bodies are not entitled to apply in those capacities, but must instead apply in the names of the partners constituting the firm, partnership or other unincorporated body. The application must be signed by all of those people.
If the person who was entitled to apply for a patent dies without making an application, the application may only be brought by the deceased's personal representative.
A person overseas may communicate an invention to a representative (the "communicatee"), who may then apply for a patent claiming to be the inventor. However, the communicatee should indicate on the application form the person on whose behalf the application is made (that is, the person who communicated the invention).
What may be patented?
An application for a patent may be made in respect of an "invention", as defined in the PATENTS ACT "Invention" means:
- any manner of new manufacture, or
- any new method or process of testing applicable to the improvement or control of manufacture
It is not possible to form an exhaustive list of what will and what will not come within this definition. The Intellectual Property Office is influenced by the facts of each case on its merits and also by relevant decisions from the courts; therefore one cannot state in advance precisely how the Office will treat a particular application. In general it seems that any new manufacture that results in some economic significance will be treated as patentable. In certain circumstances patents have also been granted for improvements that, although small in themselves, are of economic importance.
Note that mere intellectual information or visual content is not patentable. Examples include business systems, bookkeeping methods, mathematical or scientific formulae, and arrangements of words on a printed sheet.
An application for a patent may be refused if the use of the invention would be contrary to the law or to morality.
Who do I apply to for a patent?
You should apply to either of the following:
- Intellectual Property Office of New Zealand (IPONZ)
PO Box 9241
What must I include in the application?
Applications must be made in the prescribed forms (in duplicate), and must be accompanied by the prescribed fee. You can obtain these forms from the Intellectual Property Office, but they must be completed with the correct wording and in accordance with the requirements of the Patents Trans-Tasman Patent Attorneys and Other Matters Amendment Act 2016.
The application must contain the title given to the invention, which should indicate the subject-matter. The title should be brief but comprehensive. It is not necessary that it be the name under which the invention will be sold.
Further, the regulations set out certain details that must be included, including specifications, drawings and descriptions.
The regulations also provide for obtaining a patent to apply outside New Zealand and for obtaining provisional patents.
Each application for a patent must be restricted to one invention only. Several distinct matters will not necessarily be deemed to be one invention merely because they are all related to or come from part of an existing machine, apparatus or process.
How long do patents last for?
A patent lasts for 20 years. For the patent to continue after that, it is necessary to pay a fee.
Information that is available from the Intellectual Property Office
The Intellectual Property Office administers the Acts and regulations that govern patents, trademarks and registered designs. The Office holds a comprehensive library of technical and reference material, both from within New Zealand and overseas. They make available to the public copies of New Zealand patents, trademarks and designs. They have a comprehensive and very helpful web page (www.iponz.govt.nz).
Patents are recorded in a Register of Patents, which provides information on their current status. The public can inspect this register at the Intellectual Property Office.
Falsely claiming to be a patent-holder
It is an offence to falsely represent that you are the true holder of a patent of an invention. If convicted, you will be liable to a fine.
- Unless you are familiar with the Patents Trans-Tasman Patent Attorneys and Other Matters Amendment Act 2016 and the patent system, applying for a patent can be a complex process. It is advisable that you obtain the services of a registered patent attorney to ensure that your application meets the requirements of the Act and to ensure that your interests will be appropriately protected.
- The most essential element of an application for a patent is that the concept, idea or invention be novel. A patent will not and cannot be granted for a concept or idea that is already known to the public of New Zealand.
- After a patent has expired it cannot be patented again, other than as a continuation of the original patent.
- It is strongly recommended that you keep copies of all forms and documents that you send to the Intellectual Property Office, both for your own records and for any future correspondence with the Office. If you obtain the services of a patent attorney to apply on your behalf, the attorney will keep these records for you.
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