Member of the IPH Network
On 2 June 2026, the New Zealand Parliament passed its Patents Amendments Bill 2025, which stood to address a long‑standing inconsistency in New Zealand patent law. On its face, this is a positive development. However, dig a little deeper, and the extremely limited practical reach, and curious political motivation for the amendment, becomes apparent.
Our previous articles on this topic can be found here and here.
Immediate practical consequences
The Bill received the necessary Royal Assent on 4 June 2026. It is now in force as the Patents Amendments Act 2026.
Following passage of the Bill, Applicants having pending old Act divisionals had a mere two days to “daisy chain” further old Act divisional/s prior to enactment, so that such applications remain governed by the old Act. All divisional applications filed hereafter will be subject to the new Act.
Overview
The core change brings divisional applications filed under the (“old”) Patents Act 1953 into alignment with the patentability requirements of the (“new”) Patents Act 2013. In particular, such applications will now be assessed on the balance of probabilities under the more stringent standards of novelty, inventive step and disclosure introduced in the 2013 regime.
At a high level, this represents a welcome correction to a framework that has, for over a decade, operated under parallel and inconsistent standards.
The “divisional problem”
The Bill seeks to remedy New Zealand’s patent “divisional problem”. This is explained in detail below, but in a nutshell occurs due to an essential incompatibility (actually, a plurality of essential incompatibilities!) between divisional practice under the “old” Patents Act 1953 and “new” Patents Act 2013. The “problem”, per se, arises because the Transitional Provisions tied to the new Act mean that a divisional filed from an old Act case is itself an old Act case, despite the associated legislation having ceased more than a decade ago. This creates legislative and procedural challenges for applicants, attorneys and IPONZ alike, and a “fix” has long been sought.
But does the scale of the “problem” justify its own legislation?
While the Amendment Bill represents a meaningful correction in principle, its practical impact is extremely limited. The amendments apply to a very small pool of pending applications – by our count at the time the Bill was passed, a mere 52 cases, or about 0.25% of all pending rights – each of which will in any event expire by 2034.
As such, the reform operates more as a targeted clean‑up of a transitional anomaly than a change with enduring system‑wide consequences.
What was the reaction to the legislation?
This tells a story in itself. Between passage of the Bill on 2 June 2026 and Royal Assent/commencement two days later, a further 21 old Act divisional applications were filed! Of these, 18 were filed by a prominent Australian Applicant, which just happens to be a long-time adversary of a major New Zealand company with a demonstrated history of lobbying the Government!
So, a 52-case “divisional problem” now becomes a 73-case issue. The problem was always going to remain for the next eight years. Perhaps all the legislation has achieved is to crystallise the number of cases it applies to – and to create a more immediate headache for the New Zealand company mentioned above…
Some more detail on the “divisional problem”
As noted above, the perceived need for reform stems from the transitional provisions accompanying the introduction of the 2013 Act. Applications filed before 13 September 2014 remained subject to the 1953 Act, while those filed on or after that date were examined under the 2013 Act. Crucially, divisional applications continued to inherit the governing statute of their parent.
This has created a sustained period in which divisional applications may be prosecuted under materially different patentability thresholds. In particular, the 1953 Act imposed comparatively lower standards for inventive step and disclosure, and operated within a narrower prior art framework (local novelty). As a result, Applicants were able to pursue subject matter under a more permissive regime, even as the broader system transitioned to the modernised standards of the 2013 Act.
Because the 1953 Act did not impose any time restrictions on filing divisionals (other than it needed to be before the immediate parent was allowed), this disparity was exacerbated by the practice of serial divisional filings (“daisy‑chaining”), whereby Applicants could maintain a chain of pending applications over the full 20‑year patent term.
In doing so, Applicants were able to preserve and adapt claim scope under the more favourable 1953 Act standard, prolonging uncertainty for competitors and complicating the regulatory landscape.
Addressing the divisional in the room
The amendments now address this disparity by requiring that future divisional applications associated with 1953 Act filings be assessed under the patentability criteria of the 2013 Act. In practical terms, this means that such applications will now be examined against a broader prior art base and subject to a higher inventive step threshold, as well as more rigorous disclosure and support requirements.
This shift has immediate implications for both Applicants and third parties. Applicants can no longer rely on serial divisional filings to preserve subject matter under a lower patentability standard. At the same time, third parties are now better positioned to challenge new divisional filings – whether during examination, opposition, re‑examination, or revocation – by applying the stricter 2013 Act criteria.
Looking back, the substance of these amendments is far from new. The New Zealand Ministry of Business, Innovation and Employment first proposed similar changes as part of the 2019 IP Omnibus Bill, with Cabinet agreement reached in 2020. The fact that these provisions have now been enacted as a standalone measure, following years of delay, raises questions as to both timing and legislative prioritisation, particularly given the diminishing pool of affected applications.
For now, the immediate inconsistency has been addressed. Attention will inevitably return to the broader IP Omnibus Bill, which we understand remains in draft form. Whether that reform package will deliver more timely and substantive change remains to be seen.
Ponder this
To close, we wonder whether separate legislation for a mere 52 cases creates some sort of record… There are currently significant legislative reforms happening in New Zealand, so for a handful of patent applications to push their way to the front of the queue hints at the Government possibly being spooked by thoughts of these metaphorical “dinosaur” applications haunting IPONZ over the next eight years!
How we can help
The horse has bolted – at least in respect of any “last minute” divisional filings! However, anyone previously hamstrung by the divisional problem potentially now sees light at the end of the tunnel, and we’d be pleased to help you plot a path forward.