It should go without saying but….
EPO Enlarged Board of Appeal significantly changes formal requirements for making a valid priority claim.
Patent offices across the world have been aiming to increase the standard of the patents they grant by measures often referred to as “raising the bar”.
In Spring 2010 the European Patent Office introduced its new measures. These were largely related to changes in the examination process, for example, they introduced a requirement to respond to objections that they had made during the International (PCT) phase, when entering the European phase.
This measure essentially meant that rather than waiting for the objections to be raised for a second time, the applicant was required to act sooner to put the application in order for grant. However, the standard for inventiveness remained the same.
In 2012, the Australian government introduced similar measures, but in this case, they made more substantive changes. Australia had been considered one of the “easier” countries in which to obtain patent protection, as arguments about whether an invention was inventive were normally relatively simple to overcome. The most significant amendment was to remove the requirement to only consider information that a person skilled in the art could be reasonably expected to have ascertained, understood and regarded as relevant.
This had led to some generous results, with an invention described in a US patent in relation to American football being considered inventive when simply applied in the field of rugby and Aussie rules football.
Now, New Zealand is following suit and will be making some of the most striking changes. New Zealand is one of the last major economies to have “local novelty” requirements, which means that an invention could be considered new, if it had not been published in New Zealand. This is out of step with most of the rest of the world, where any public disclosure anywhere in the world by anyone could destroy the novelty of an invention.
As of 13 September 2014, New Zealand will move to so called “absolute novelty” requirements. Whilst this could be considered a bad move for patentees, most patentees are also manufacturers or sellers, therefore fewer “bad” patents on the New Zealand register can be seen as a benefit. Of course, from the other point of view, there are less than two months remaining to file any applications for less inventive inventions in New Zealand. So don’t delay!
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