Formal Opposition to
Patents Amendment Bill
(Government Bill 154–1, Scott Simpson)
From: Ukes Baha | 30 August 2025
Submitted in response to the call for Patents Amendment Bill
Summary of Position
I oppose the Patents Amendment Bill in its current form.
While framed as a technical measure to “align standards” and “modernise transitional provisions,” the bill in fact undermines fairness, creates arbitrary outcomes, and risks chilling innovation.
It retrospectively alters the legal expectations of applicants who filed under the 1953 Act in good faith, embeds confusing hybrid standards, and privileges large corporates who can afford to adjust claims under stricter rules. Small innovators, universities, and community inventors will face higher barriers, more uncertainty, and less protection for their intellectual property.
Far from “modernisation,” this bill risks entrenching legal inconsistency, undermining trust in the patent system, and discouraging research commercialisation in New Zealand.
1. Retrospective Reach and Natural Justice
Reference: New section 258A; amended s254, s258.
Problem:
- Applicants who filed under the Patents Act 1953 relied on the standards in force at the time.
- This bill rewrites those rules mid-stream, applying 2013 Act-level standards (novelty, inventive step, support) to divisional applications still linked to pre-2013 filings.
Risk:
- Retrospective changes undermine natural justice and legitimate expectation.
- Innovators who invested under the 1953 framework are unfairly penalised, while large corporates with legal resources gain advantage.
2. Confusing Hybrid Standards
Reference: s254(3)–(6), s258A.
Problem:
- The bill creates a hybrid regime: applications are processed under 1953 Act procedures but judged against 2013 Act substantive tests.
- This blurs the line between statutes and complicates compliance for applicants and the Commissioner alike.
Risk:
- Legal uncertainty and inconsistency across applications with similar timelines.
- Increased disputes, appeals, and judicial reviews as applicants contest arbitrary cut-offs.
3. Arbitrary and Unequal Outcomes
Reference: s258 and s258A filing date criteria.
Problem:
- Nearly identical applications may fall under different rules depending on narrow date criteria (filed before or after commencement but “given” a pre-2014 date).
Risk:
- Arbitrary treatment of applicants, undermining fairness and predictability.
- Risk of litigation and reduced trust in New Zealand’s IP framework.
4. Risks to Innovation and Small Inventors
Problem:
- The stricter thresholds will disproportionately affect small inventors, universities, and start-ups who rely on divisional applications to refine claims.
- Large firms can adapt or absorb costs; small innovators face loss of protection or prohibitive expenses.
Risk:
- Chilling effect on innovation, research commercialisation, and grassroots IP development in New Zealand.
- Weakening of local inventors’ ability to compete against global corporates.
5. Procedural Rights and Oversight
Reference: s254(4)–(5), s258A(3).
Problem:
- The bill narrows opposition grounds under the 1953 Act but gives the Commissioner discretion to raise additional grounds even if not relied upon by an opponent.
Risk:
- Increased uncertainty and expanded discretionary power without equivalent checks and balances.
- Applicants face higher risk of rejection or revocation despite acting within the law when filing.
6. Questionable Necessity and Proportionality
Problem:
- Transitional applicants are a finite and diminishing group; natural expiry of the 1953 Act backlog would resolve the issue without legislative overhaul.
Risk:
- The bill imposes complexity, litigation risk, and compliance costs to solve a problem that would disappear with time.
- Disproportionate legislative intervention that undermines stability for marginal gain.
7. International and Treaty Implications
Problem:
- A patent is a recognised property right under WTO TRIPS. Retrospective rule changes risk breaching obligations and exposing New Zealand to claims of unfair treatment.
Risk:
- Legal challenge domestically (judicial review, legitimate expectation claims) and internationally (TRIPS consistency).
- Potential reputational harm to New Zealand’s IP regime.
Conclusion and Recommendations
This bill does not simply “harmonise standards.” It retrospectively alters rights, creates legal uncertainty, undermines small innovators, and risks chilling research commercialisation. It is disproportionate to the problem it seeks to solve and erodes trust in New Zealand’s patent system.
Recommendations:
- Withdraw the bill in full.
- If reform is pursued, grandparent existing 1953 Act applications—do not retroactively impose 2013 Act standards.
- Maintain clear separation between Acts—avoid hybridised transitional provisions.
- Protect small innovators and universities from disproportionate impacts.
- Limit Commissioner discretion—retain balanced opposition and review rights.
- Allow transitional cases to phase out naturally rather than rewriting law for a diminishing group.
- Ensure full treaty and TRIPS compliance before altering established patent rights.
Respectfully submitted,
Ukes Baha
Public Health Advocate | Counsellor | Policy Analyst
ukesbaha.com