Huo Raymond: Patents Bill — First ReadingText is incorporated into the Bound VolumeHuo Raymond: Patents Bill — First Reading[Sitting date: 05 May 2009. Volume:654;Page:2891. Text is incorporated into the Bound Volume.]RAYMOND HUO (Labour):I rise to support the Patents Bill at its first reading for a very simple reason—that is this bill brings New Zealand’s patent law into line with many of our trading partners and will reform and modernise New Zealand patent law. The bill is the culmination of the Labour-led Government’s review of patent legislation begun in August 2000. The bill will ultimately replace the current Patents Act 1953 which has long been considered to be outdated. It is hoped that the Patents Bill will provide a regime that ensures that an appropriate balance is maintained between providing adequate incentives for innovation and protecting the interests of the public.With the exception of a number of significant developments the bill is essentially the same as an exposure draft bill released for consultation in late 2004. Although the bill introduces a wide variety of changes some key features are summarised as follows. There is the introduction of an absolute novelty standard. The bill removes New Zealand’s current local novelty requirement for patentability and replaces it with absolute novelty—meaning that an invention will not be considered novel if it has been disclosed or performed anywhere in the world. Under the current Act novelty is determined in respect of what is known or used in New Zealand only. No notice is taken of information published outside New Zealand. This fundamental change recognises that innovation is a global matter. Under the bill novelty will be determined on the basis of all information that has been made publicly available anywhere in the world before the filing date of a patent application. This change brings New Zealand into line with the great majority of countries because as some lawyers have rightly said New Zealand cannot operate in a vacuum.Patent applications will now be examined for an inventive step and usefulness. Again this change will bring New Zealand into line with most other countries that generally examine not only for novelty and an inventive step but also for usefulness. For an invention to be considered useful it must have a specific credible and substantial utility. The change is sensible because it ensures that patents will be granted only when the inventor identifies a real-world use for the invention. This will be of critical importance to claims involving genetic material whereas in the past there have been instances of patents being granted for material when no specific use has been disclosed.The term “manner of manufacture” is taken from the current Act. The courts have interpreted this to exclude such things as products of nature mere discoveries mathematical algorithms mere schemes plants and methods of medical treatment of humans.The bill provides for establishment of a Māori advisory committee to advise the Commissioner of Patents in relation to patent applications for inventions involving traditional knowledge or indigenous plants and animals. Similar provisions are found in New Zealand’s plant variety rights and trademark legislation.The bill will introduce a specific experimental-use exception into New Zealand’s patent legislation. It is not difficult to understand that the disclosure of an invention prior to filing a patent application will destroy the novelty of the invention and prevent the grant of a valid patent. The bill provides that in the event of unauthorised disclosure a valid patent can still be obtained if a patent application is filed within 12 months of the disclosure.The current pre-grant opposition procedure will be repealed and replaced with new procedures for challenging the grant of a patent. It now appears that we have conflicting views on that point. Some say that the procedures introduced in this bill will be much simplified and will reduce the costs and complexity involved in challenging the validity of granted patents. This includes a re-examination procedure in clauses 88 to 92 and an expanded administration revocation procedure in clauses 104 to 106. Both procedures allow third parties to make an application to the Commissioner of Patents challenging the validity of a patent as opposed to going through the courts. The current provision allowing the courts to revoke a patent will remain.However some believe that by removing pre-grant oppositions this bill is “curiously out of step” with the more stringent examination requirements. Experts from A J Park say that pre-grant oppositions give competitors an opportunity to oppose the grant of the patent. Under the new system the opponent will be vulnerable to an action for infringement because the patent is granted. An infringement action is not a risk under the current law until the opposition process is completed.After its first reading the bill will of course be referred to the Commerce Committee which will hear submissions on it. It will be interesting to hear what the submitters will say on these changes or “controversial provisions” according to those experts. I look forward to those submissions. I expect there to be vigorous debate with the possibility of sensible and better changes being proposed if necessary. Thank you.