9. Stringency Test for Patentability
47. Patent owners and Pharmac commented that the current stringency test for patentability was too liberal and that a "balance of probability test" needed to be adopted. Advantages noted in the submissions were consistency with Australia, and the likelihood of patents being granted with a greater presumption of validity and reduction in oppositions.
48. Pharmac acknowledged that adopting a more restrictive test would most likely increase the direct costs of obtaining a patent, but considered this was more than offset by reduced costs to both patent owners and the public in general through the reduced chance of invalid patents being granted. The NZIPA's submission noted that the increase in costs to applicants by introducing the balance of probabilities test will not necessarily or always be small, but agreed that any increase in costs is likely to decrease with time and experience.
49. Nobody opposed the introduction of a more restrictive test.
50. The NZIPA submitted that the balance of probability test should only be introduced for novelty and inventive step and that the test should be expressed as requiring the Commissioner to be "satisfied" that the invention claimed possesses novelty and inventive step, as has been done in Australia. The NZIPA considered that one disadvantage of a more restrictive test would be the exclusion of innovations that might presently be protected by patents, leading to a loss of incentive for development and/or publication of innovations.
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