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New Zealand has closed a loophole that allowed the continued filing and grant of patents under the Patents Act 1953 for more than a decade after that Act was repealed.
Rather than a clean break from the previous system, however, the amending legislation creates new complexity.
What the Patents Amendment Act 2026 does
The 1953 Act was replaced by the Patents Act 2013 which introduced stricter standards and procedural requirements, including examination for an inventive step and a time limit for divisional applications.
But the transitional provisions allowed applications filed before the 2013 Act came into force, and any subsequent divisional applications relating to them, to continue under the old rules. That meant divisional applications could still be filed and granted for inventions that are merely obvious variations on what already exists.
The Amendment Act changes this. Any new divisional application divided from a parent application treated as made under the 1953 Act must now satisfy the 2013 Act's requirements for novelty, inventive step, and support, which will be determined on the balance of probabilities. Opposition proceedings for these applications will also be conducted under the stricter 2013 Act criteria.
Why it matters
The practical impact of the loophole has been significant. Since the 2013 Act came into force, more than 4,000 divisional patent applications have been treated as having been made under the repealed 1953 Act.
Some applicants have exploited the transitional provisions to maintain pendency of patent families and create "patent thickets" to block competitors, deter market entry, and stifle innovation. In one example, a single patent application has spawned a staggering 27 divisional applications and numerous opposition proceedings spanning 16 years (and counting).
The Amendment Act passed its second reading, committee stage, and third reading under urgency on Saturday 30 May 2026, with cross-party support. As Commerce and Consumer Affairs Minister Cameron Brewer put it:
…this bill… will allow inventions without merit to be refused more quickly at the examination stage rather than third parties having to expend unnecessary time and resources to oppose those patents for such inventions being granted. By ensuring that undeserving inventions are not patented, local businesses will have the freedom to manufacture and sell products without legal risk of infringement, and, in turn, this will contribute to economic growth.
The Amendment Act came into force on Monday 8 June 2026.
A case of too little, too late?
The reform is welcome but long overdue.
The 2013 Act commenced in September 2014. Consultation on amending the transitional provisions began in 2016. Meanwhile, weak examination standards have been allowed to persist for more than a decade.
And the Amendment Act doesn’t provide a perfect cure. Divisional applications filed after commencement continue to be treated as patent applications made under the 1953 Act, but with the 2013 Act's novelty, inventive step, and support criteria grafted on. This hybrid approach adds another layer to New Zealand's already complex transitional provisions.
Meanwhile, details of examination remain confidential between the patent office and the applicant, contrary to modern principles of open government. Competitors will remain entirely in the dark as to the novelty, inventive step, and support issues addressed during examination, potentially leading to unnecessary, time-consuming and costly re-litigation in opposition and revocation proceedings.
What businesses and patent holders should do now
Applicants with pending 1953 Act applications should note that any new divisional applications will be examined under the stricter 2013 Act criteria for novelty, inventive step, and support. Existing divisional applications, filed before the Amendment Act came into force, remain subject to the old examination standards.
Businesses concerned about competitors' 1953 Act patents and pending applications should consider their options for opposition and revocation. The Amendment Act may expand the available grounds and improve the prospects for opposition and revocation proceedings.
Chapman Tripp Patents has extensive experience in patent prosecution, opposition, and litigation in New Zealand under both the 1953 Act and the 2013 Act. We have particular expertise on the complex transitional provisions of the 2013 Act and were the only patent attorney firm to make a submission on the Amendment Act.
If you have questions about how the Patents Amendment Act 2026 affects your patent portfolio or business, please contact Matt Sumpter or Ben Halberg.
