Curran Clare: Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill — First ReadingText is incorporated into the Bound VolumeCurran Clare: Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill — First Reading[Sitting date: 09 February 2016. Volume:711;Page:8809. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South): Thank you Mr Deputy Speaker and happy New Year to you and to everyone in the House and across Parliament including all the staff. As perhaps the only speaker on this bill tonight who actually sat in the Commerce Committee from 2009 through to 2013 when the Patents Bill which is now the bigger Act that this bill is amending was being passed—sat through all of the hearings the debates and then the big drama that ensued in ensuring that it passed in a way that did not suppress our innovation in this country—I think that it is good to bring a little bit of historical perspective.I want to just go back a bit to nearly 10 years ago when this bill had its gestation in a process that began under the previous Labour Government and that was ultimately about wide-ranging reform of our patents system and the Patents Act of 1953. The year 1953 is quite a long time ago well before I and presumably most people sitting in the House tonight appeared on the earth—not all but most. The Patents Bill had its first reading in 2009 and it included a provision to update and modernise our registration requirements for patent attorneys and align New Zealand’s regime with that of Australia.It is useful for people to know—and they may not have worked that out tonight listening to the debate so far—that the current bill that has been tabled is not a new bill. Well it is a new bill but it has its gestation in a previous bill that sat on the Order Paper for a long time. But by the time that that bill the bigger bill made its way back to Parliament in 2011 the Commerce Committee recommended that that part of it that was about the modernisation and updating actually be separated—because there had not been a single trans-Tasman framework for regulating patent attorneys established even though it had been signalled by both the New Zealand and Australian Governments. It could not be included in the bill at that point because the framework had not been established. So that is what we are seeing here tonight in this bill.Labour is certainly supporting that to the select committee and sees no problem with that in theory because streamlining is a good idea the modernisation and updating of this regime is clearly important—it was 1953 it is now 2016—and it is supporting efficiencies in the patent process. Again as my colleague Clayton Cosgrove said in terms of the alignment of the jurisdictions we have no issue with that. We had no issue with that in another piece of legislation that went through the select committee last year on accounting standards and how they operate. That is a good and sensible thing to do. But I do think it is important that when a bill comes to the House you do actually hear its history and that it was part of a bigger bill that did pass through the House in 2013—and that it has sat waiting until that streamlining framework has actually been established which has now occurred.I do however want to express a concern. It is not an outright concern and my hope is that any fears will be allayed when we get to the select committee. But I do want to express a concern with one of the aspects of the bill. The first part of the explanatory note says that since the Patents Act 2013 the bigger bill entered into force “an issue has been identified with the grounds on which third parties can oppose the grant of a patent on an accepted patent application.” Melissa Lee referred to that before. The questions I have are: who has expressed the concerns; where have these concerns been expressed? I did not hear the Minister allude to what the concerns are. All of the information that I can find out about this bill does not go into any detail about that. It all uses exactly the same phraseology around that.The explanatory note also talks about the fact that as enacted there has been some kind of “drafting error” as it was described somewhere in the Patents Act 2013 that “allows a grant of a patent to be opposed on the ground that an accepted patent application claims patent protection for more than 1 invention …”. And that is described—and it is jargon—as “a lack of unity of invention.” It then goes on to say that “There was no policy intention to introduce lack of unity of invention as a ground of opposition in the Patents Act 2013.” Well I sat on that select committee and perhaps it is a stuff up and perhaps it is a drafting error. And if that is the case then that is fine but there were reasons and I want to go back to the intent of the bill that came back to the House in 2013 and just draw the House’s attention to what it said.It said—and this is paraphrasing part of the commentary on that bill—“We think that the grounds on which third parties can oppose a patent being granted request that a grant of patent be re-examined or request that a patent be revoked should be consistent and recommend amending the appropriate clauses of the bill to achieve this.” It said: “Many submitters favoured pre-grant opposition and argued that it allows New Zealand businesses to limit the scope of troublesome international applications; and that an opposition mechanism allows overly broad patent claims to be narrowed preventing patent owners from wrongfully asserting invalid rights and thus reducing costs and disruption to business.”Well what that is shorthand for are these things called patent trolls. Patent trolls are endemic in the United States. They are an industry unto themselves. They do not produce anything. They do not add any value. All they do is litigate and create barriers to innovation and huge costs. And they result in small businesses particularly innovation businesses going under. My concern is well what is this drafting error? We spent a lot of time discussing this in the select committee: what impact will that have on putting up the barriers to patent trolls? The whole point of having third-party opposition to patents was to provide a mechanism to ensure that there could not be rampant patent troll activity.Just to give you a sense of the extent of patent trolls—most of them come from the United States. It is important that people know where the litigators and attempts to try to prevent innovation and companies from achieving a patent are occurring and that they come from the patent trolls. In 2015 more patent law suits were filed in the United States than in any other year save one buried beneath heaps of high-tech lawsuits led by patent trolls—shell companies with no real assets other than patents. About two-thirds of all patent lawsuits were filed by patent trolls.Hopefully those fears will be allayed in the select committee. I am raising that concern because I do hope that the history of this bill—the importance of patent reform—is not being reinvented and that we are not going to open up New Zealand businesses that are trying to achieve patents to risk from that patent troll regime.