Instruments to Challenge the Grant of a Patent as a Third Party: Suggestions for the Review of New Zealand's Patent System
In recent decades, intellectual property law (in particular patent law) has had to face new challenges due to the accelerating development of technology. Patents can have a negative effect on a country's economy if too many invalid or overly broad patents are granted. Such patents have the potential to impose high costs on society without providing substantial benefits. If a patent regime cannot avoid the grant of such patents, or does not provide instruments to remove them from the register, the negative effect may stifle innovation instead of encouraging it. In 2008, in consideration of these problems, the government of New Zealand introduced a Patents Bill. This Bill is the culmination of the government's review process, which started in the late 1980s. The aim of the Bill is to update New Zealand's patent law in order to bring it in line with international practise and to reduce the costs to society arising from invalid and overly broad patents. The provisions of the Bill cover all principal aspects of the patent regime: standards of examination and procedures, challenges on the grant of a patent, and provisions for updating the regulatory regime for patent attorneys. This dissertation focuses on analysing how the quality of New Zealand's patents could be enhanced using the knowledge and experience of third parties. Because the current examination standards may allow the grant of overly broad patents, this dissertation analyses specifically which changes in the examination procedure could help prevent the grant of "bad" patents without overburdening the resources of the IPONZ. In the next step, the dissertation analyses third-party instruments under the current patent system and under the Patents Bill 2008, proving that neither approach by itself would be sufficient to bring about an effective patent reviewing system for New Zealand. The approach under the current system is too expensive and has the potential to delay the granting procedure, whereas the approach proposed by the Patents Bill 2008 limits the influence of third parties before the grant of a patent to such an extent that most patents may remain in the register. The overall aim of this dissertation is to suggest a new approach that includes aspects of both of the others in order to find a balanced solution and an optimal fit for the specific needs of New Zealand.