08 April 2013

Take THAT, New Zealand Patent Attorneys!

Face punchLast week, IP Australia announced that ‘in March 2013 Australia and New Zealand signed a bilateral arrangement for the trans-Tasman regime of patent attorneys.’

Perhaps I have just not been paying enough attention, but this announcement took me completely by surprise.  Of course, I was aware that there has been an ongoing project for some time to create a closer ‘Single Economic Market’ (SEM) across Australia and New Zealand, and I have written in the past about some of the proposals pertaining to the two countries’ IP systems, such as the implementation of a single integrated application and examination process, and a unified regulatory regime for patent and trade marks attorneys.

However, I was not aware of any specific progress on the patent attorney regulatory regime.  Until this announcement, the most recent update on progress in the SEM initiatives was back in January, when IP Australia indicated that further development of the single application/examination process was dependent upon passage of the NZ Patents Bill 2008, in order to ‘more closely align the patents laws of New Zealand and Australia.’

What I found surprising was not merely that an agreement [PDF, 92 kB] has been drafted and signed by the Australian and New Zealand governments, but that New Zealand has completely capitulated to the Australian regulatory regime, in the form it will take following commencement of the Raising the Bar reforms on 15 April 2013.  This is despite the fact that New Zealand practitioners responded to a discussion paper on the proposal back in 2011 with almost universal (and quite understandable) opposition to the idea of a common regulatory regime based on the Australian system.

New Zealand patent attorney Matt Adams has written on his PatentBuff blog, with some justification, that this move could result in further contraction of the (already small) cohort of registered patent attorneys in New Zealand.

‘Net Benefit’ v ‘Mutual Benefit’

Adams’ concerns are not new.  The New Zealand Institute of Patent Attorneys (NZIPA) expressed similar reservations in a submission [PDF, 104 kB] responding to a study conducted last year by the Australian and New Zealand Productivity Commissions on ‘strengthening economic relations between Australia and New Zealand’.  NZIPA drew on an economic analysis of the proposed changes under SEM prepared by the Bureau of Economic Research Limited (BERL), which reported that:

A balanced and strategic approach to integration is particularly important when the relationship between economies seeking integration is not one of equality. Inequality may exist between economic markets in many ways. For example, one market may be smaller than the other, or one might have weaker performance. There may be natural or constructed absolute advantage in one market, and not the other. Where inequality exists, especially where it is multidimensional, the disadvantaged economy is likely to be an economic loser.

In other words, the fact that a reform might result in a net benefit to the combined Australian and New Zealand markets in a particular industry, does not mean that it is necessarily mutually beneficial.  For example, a net loss to New Zealand could be more than offset by a net gain to Australia.

Decline of the New Zealand Profession?

The BERL analysis went so far as to suggest that ‘the New Zealand Patent Attorney industry could be sent into full industry decline if economic integration activities are not well informed and appropriately structured.’  NZIPA identified one of the causes of potential decline as ‘restructuring of the training and regulatory framework towards an Australian bias.’

The bilateral agreement announced last week does not merely restructure the training and regulatory framework with an Australian ‘bias’ – it adopts the Australian system, lock, stock and barrel, as the new ‘trans-Tasman’ regulatory regime.  Specifically, Clause 2.1 of the Agreement, under the heading ‘Implementation of Arrangement’, states:

The joint regulatory framework for patent attorneys in Australia and New Zealand will be based on the application in New Zealand of the existing Australian regulatory regime as amended to reflect its new trans-Tasman status as set out in this Arrangement.

The announcement indicates that implementing legislation is expected to be introduced in the Australian and New Zealand parliaments later this year.  In the case of Australia, it seems that this will involve fairly superficial amendments effectively replacing references to Australian Patent Attorneys with suitable references to the new ‘Trans-Tasman Patent Attorney’ (TTPA), along with consequential changes.

Impact on the New Zealand Profession

Obviously, implementation of the Agreement will have no impact on Australian patent attorneys.  However, for the New Zealand profession there will be a number of significant changes.  For example:
  1. Australian patent attorneys are required to have a tertiary degree with ‘in-depth’ coverage of a field of patentable subject matter, whereas New Zealand patent attorneys currently are not;
  2. in Australia, there is a separate system of registration for trade marks attorneys, while in New Zealand there is currently only a register of patent attorneys, who are also qualified to act as trade marks attorneys;
  3. New Zealand currently has no equivalent of Australia’s Professional Standards Board;
  4. in New Zealand, the education, training and examination for qualification as a patent attorney currently remains in the hands of the profession, while in Australia this role has largely been transferred to the tertiary education sector, where a number of competing qualification options now exist (it is notable that the TTPA regime will immediately expand the market for Australian tertiary education courses to include New Zealand training attorneys);
  5. Australian patent attorneys are now subject to a formal ‘continuing professional education’ (CPE) requirement, whereas New Zealand attorneys currently are not;
  6. prior to registration as a patent attorney in Australia, applicants are required to provide a ‘statement of skill’, showing that they have had sufficient practical experience in prescribed skills, whereas no such requirement currently exists in New Zealand; and
  7. the cost of registration in Australia is currently higher than in New Zealand, especially for those who wish to register as both patent and trade marks attorneys.

Conclusion

Frankly, I find it astonishing that the New Zealand government has signed up to an agreement which so clearly favours Australia and Australian practitioners, despite the strong – and well-reasoned – contrary input it received from a broad spectrum of individuals and organisations actively involved in the profession in New Zealand.

In this regard, it appears that IP Australia has got its way – something to which our New Zealand colleagues will have ample time to become accustomed, I am sure!

Image courtesy of David Castillo Dominici / FreeDigitalPhotos.net

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