Got that upside-down feeling? Some IP news from the Antipodes

Rarely does the IPKat find a single
illustration that so aptly combines
two unrelated news items as on
this occasion

The United States has a unitary patent system that appears to cover all 50 States, together with the District of Columbia and a handful of other offshore locations.  The European Union has been flirting with its own not-quite-unitary system too [though the absence of the world's two top producers of olive oil, Spain and Italy, is obviously causing friction, quips Merpel]. Now the good news is that, on the opposite side of the planet, our Antipodean cousins in Australia and New Zealand have been doing a bit of cooperation of their own. As Adrian Evans (Henry Hughes, Wellington NZ) explains:

"Although it will not lead to a unitary patent, the Governments of New Zealand and Australia last week announced (here and here) that they have agreed to a plan which will deliver a simplified filing and examination process for patent applications filed in both countries by June 2014.  Before the plan can be implemented, the New Zealand Government must pass new patent legislation currently before Parliament (expected in 2012), as discussed on the IPKat weblog here, here and here.

      

The objective of the plan is to provide patent applicants with a faster, more cost-effective means of achieving patent protection in both jurisdictions.    

New protective
clothing will be
worn by patent
examiners ...

Though precise details of how the process will operate are yet to be announced, it's clear that there will not be a single patent covering both countries.  Instead, while we can expect a streamlined filing process, this will still result in a separate application in each country and the individual applications will be subject to the laws of the respective countries. Both sides acknowledge that there are, and will continue to be, significant differences between the patent laws of New Zealand and Australia.  In effect, an examiner in either the Intellectual Property Office of New Zealand or the Australian Intellectual Property Office will examine the same application in each country in accordance with the patent law of each country and issue separate examination reports for New Zealand and Australia.  This will result in the grant of an independent patent in each country, possibly with different claims depending upon the objections raised in the examination reports and any pre-grant opposition by a third party.  We think applicants will welcome this integrated examination since it should improve the consistency of novelty and inventive step objections raised in the two countries.  New Zealand has greater restrictions on patentable subject matter than Australia (eg for methods of medical treatment and potentially, under the new law, computer programs).  Accordingly, a New Zealand examination report is expected contain more patentability objections than its Australian equivalent.      

It is proposed that the plan will be implemented in three stages:

Stage 1: Work sharing

The Intellectual Property Offices of New Zealand and Australia will share the results of their examinations and searches for prior art in order to assess and improve the efficiency and quality of examination across both countries.  Under section 91 of the New Zealand Patents Act 1953, examination reports are neither open to public inspection nor published by the Commissioner of Patents.  This bars work sharing until the New Zealand Government passes its current Patents Bill  (unlikely before this November's General Election).

Stage 2: Single application process

By early 2013, applicants will be able to use a common filing process for both New Zealand and Australia, gaining the same filing date for the separate applications in each countries.

Stage 3: Single examination

Patent applications common to New Zealand and Australia will be examined only once in either New Zealand or Australia.  The examiner will have to consider differences in each country’s patent law.  Single examination should be implemented by June 2014.  It is not yet clear whether applicants will be able to choose where his applications are examined or what fee structures may be involved". 

Says the IPKat, this sounds like a very constructive first step and, while Adrian says "... it will not lead to a unitary patent", years of feline experience have taught him that many cats have held paws and thought to themselves " ... it won't lead to marriage" [or any of its modern equivalents or substitutes ...], but it has".  Merpel suggests that, since neither Australia nor New Zealand are major producers of olive oil, the relationship should progress smoothly.

A second piece of news from Down Under comes from a very patent-y patentologist, Mark Summerfield (Watermark, Melbourne, Australia), who has turned his attention and his mordant wit to a matter concerning trade marks. He writes:

"You might be interested in a decision just issued by the Commissioner of Trade Marks in New Zealand. Back in 2003 the country's largest brewer, DB Breweries, applied to register the word RADLER for 'beers; beverages made from malt; lager' in class 32; the trade mark was registered in 2004 and DB then marketed a citrus-infused beer product under the RADLER brand.

A group calling itself the Society of Beer Advocates (SOBA - gettit?!) sought cancellation of the trade mark in various grounds, generally related to the fact that everywhere else in the world the word 'radler' is descriptive of a citrus-infused beer beverage. However, in DB Breweries Limited v Society of Beer Advocates, Inc [2011] NZIPOTM 19 the Commissioner found that SOBA stone-cold failed to prove its case in relation to the common knowledge and use of the word 'radler' as a descriptive term in New Zealand.

So, barring an appeal to the High Court (not out of the question, I would think), New Zealanders will continue to drink only those radlers sanctioned by DB, and be denied the pleasure of consuming genuine imported radlers!  (Citrus infused beers, that is -- not cyclists.  New Zealanders can continue to import and consume as many cyclists as they wish)".

Asks the non-cycling IPKat, can anyone explain why, other than to wean drinkers off beer, would anyone want to soil spoil it by infusing it with citrus?