Clark David: Patents Bill — In Committee Third ReadingText is incorporated into the Bound VolumeClark David: Patents Bill — In Committee Third Reading[Sitting date: 27 August 2013. Volume:693;Page:12963. Text is incorporated into the Bound Volume.]Dr DAVID CLARK (Labour—Dunedin North): I rise to speak to this Patents Bill. I want to start first by agreeing with the previous speaker Metiria Turei that the Wai 262 matters need to be addressed. That is fundamentally something that this Government has been very slow to work on andMāori whom I speak with who have an interest in this area are incredibly frustrated with the lack of progress on that particular claim. There is absolutely no doubt that there are some very tricky details to sort through but that is no excuse for not addressing them and for parking the work and not actually getting on with having that conversation. It is my understanding that that is the current state of things. The Minister in the chair the Minister of Commerce may like to take a call to correct me if that is not the case and maybe explain what work is going on because it does cut to the heart of the issue that we are debating here and to which I wish to return as I round out my contribution on this part of the bill Part 2.This part of the bill is as I said right there at the core. It starts out: “Patent may be granted for patentable inventions only”. In one sense we would say that that is an absolute truism but then this part of the bill wants to set out what that means and what it does not mean because we need to know as lawmakers exactly why we are puttingthese things in place and what the purpose is that we are trying to achieve. We talked about the wider public and social good in the previous part. This part of the bill lays out exactly what it is that that means.There are many types of intellectual property. We are talking about patents that protect ideas and concepts as opposed to patents for designs which protect appearance aesthetics and the like; copyright which protects the copying of things that are exactly the same; or trademarks which are designed to protect a unique sign. It is distinguished from know-how which is more around confidential information and is the kind of thing that is usually covered by contract.So we are talking here about patents and what is patentable. There is a significant change that is picked up in this part. Clause 13 of Part 2 says that an invention that is patentable is one that is a manner of manufacture is novel takes an inventive step—that means it is not obvious—is useful and is not excluded by other clauses that are discussed elsewhere in clauses 14 and 15.All of these criteria must be satisfied before a patent application can be accepted and granted. Currently inventive step and usefulness are not part of the patent examination process. So this tightens up the law in a fashion that we think is very important. But we do not go so far as to say that we think that organisms including plant varieties and traits in organisms are not patentable inventions. That is because of the kind of economy that we believe there should be in New Zealand.I should say that all members of the House—or I believe most parties—are going to be supporting this bill. We are all in agreement that we need to have patentable material and that it needs to be well defined in the interests of New Zealand. What we are having a debate about in one sense is precisely how far this patenting should extend. The Labour Party has a strong view that we need a diversified economy and that we need an economy that is based on new technologies new inventions new ideas and new concepts. So we want to support legislation that encourages new patents that encourages new inventions and that encourages and protects the ideas generated by New Zealanders for reasons of greater social good but also in the interests of New Zealand as a country. That is why we support the legislation and that is why we think these tests need to be put in place.The idea that we will not protect plant varieties as suggested in Supplementary Order Paper 124 which Mr Browning has put forward does potentially undercut the future prosperity of New Zealand. In the Labour Party we believe that we need to have a prosperous and flourishing economy in order to provide those social goods and in a sustainable fashion that we as a country would like to afford and need to afford. With high unemployment at the moment and an economy that is struggling we see many of these things being cut through a range of cuts by the Government.In order to afford the health care and the education that we as a country would like to see we need to have a prosperous economy. One way in which we do that is by protecting intellectual property correctly. A law that updates the understanding of what that might mean is very important to New Zealand’s future prosperity and to a diverse economy that is not susceptible to putting all our eggs in one basket and then susceptible to global trends in commodity prices to use one very pertinent example right now with the trade issues with China. This kind of legislation can encourage entrepreneurs to explore new ideas to expand the base of human knowledge and therefore to also increase New Zealand’s prosperity over time.There are exclusions that are explicit in this part of the bill and we support these as well. The examples provided here and in several of the Supplementary Order Papers are intended to give a signal to law interpreters further down the track. For example we know that exclusions are there to restrict access to necessary health-care to treatmentsof human beings by surgery or therapy to methods of diagnosis practised on human beings and to biological processes for their generation in respect of human beings. There are others that are here as examples obviously intended as a guide.If we look at clause 14(1) and beneath it we have a series of examples that are designed to suggest a more general principle. It states: “An invention is not a patentable invention if the commercial exploitation of the invention so far as claimed in a claim is contrary to—(a) public order … or (b) morality.” and these things in that list are things that we would consider moral potentially. Those kinds of exclusions are put in there for good reason. They are technical exclusions but they are very important and are intended as a guide for future use. This part also defines the term of a patent which is 20 years from the patent date unless certain fees that are appropriate to the filing of a patent are not paid.The purpose of a patent is to enable the inventor to exploit the invention. Obviously it is to encourage them to invest and therefore reap a reward further down the track. The various what shall we call them protections—is the right word—put around that throughout Part 2 are there to make sure that those things are looked after. Subpart 3 is about who may be granted a patent and it covers technical details around co-owners of patents. We know that once you add a few more people into the mix these things can become more complicated and it is good that the department has worked through the detail in that respect. Part 2 also gives power to a commissioner to give directions to co-owners so there is a discretion clause in here—clause 25 in Part 2 Subpart 3—that gives the commissioner some discretion. That seems appropriate in the context of this legislation so that we do not get perverse outcomes from the legislation.But to round out this contribution we in the Labour Party are uncomfortable—very uncomfortable—with the exclusion of organisms especially considering the way in which some of our more prosperous inventions have come from that area. An example is the kiwifruit industry as alluded to by my colleague Dr Megan Woods earlier on. We know that patents such as the Hamilton jet and so on are the trademark—not the trademark excuse the pun. They are the—Hon Maryan Street: Hallmark.Dr DAVID CLARK: —hallmark. Thank you to the Hon Maryan Street for that tip. They are the hallmark of a New Zealand that we would want to see going into the future. It is that kind of inventiveness that our very good education system has produced. We produce quality graduates who are smart thinkers. We want to ensure that New Zealand’s prosperity is built on that creativeness.I am looking forward to hearing a contribution from the Minister because it is a very important issue for this bill as to whether these inventions are excluded or included and I am interested in his view on this matter. He has been strangely quiet—perhaps a member of that rare species of parliamentary wallflower whom the public would happily have us patent in order for more widespread exploitation. But I am sure that the Minister will take a call and I look forward to hearing why it is that he thinks this Supplementary Order Paper should be included or excluded. Thank you.