O'Rourke Denis: Patents Bill — Second Reading 
Text is incorporated into the Bound Volume 
O'Rourke Denis: Patents Bill — Second Reading 
[Sitting date: 12 September 2012. Volume:683;Page:5166. Text is incorporated into the Bound Volume.] 
DENIS O’ROURKE (NZ First) 
: 
 With only a couple of reservations New Zealand First supports and welcomes the Patents Bill which was introduced in 2008. It is clearly a bill a long time in gestation but it is good to see a bill to replace the Patents Act 1953 which is obviously outdated and not compatible with some overseas legislation modelled as it was on the earlier UK Act of 1949. The 1953 Act has a low threshold for patentability compared with other countries. Therefore broader patent rights were available here than elsewhere. So technology freely available elsewhere might not be available here in New Zealand because of coverage by patents. This could of course damage New Zealand business innovation damage business growth and productivity and also restrict consumer choice. 
The bill will modernise and upgrade patents law in New Zealand. Part 5 as we know has been split away from this bill and will now form part of the new Patent Attorneys Bill. The new Patents Bill being now considered will be good for New Zealand business for the reasons I have already mentioned and it will align the New Zealand law with international practice and so it should. It will strengthen the criteria for granting patents in New Zealand to an absolute novelty standard so that a patent applied for here will be examined for usefulness and for the presence of an inventive step. So although patents will not be available according to the broader regime previously available the new standards applicable will ensure we believe better patents better products and therefore a better outcome overall for New Zealand business. 
It is a very large and comprehensive bill developed since at least 2008 and we think that the Commerce Committee has done a great job with it over that period of time. For those reasons the bill fundamentally deserves support with only a couple of reservations which I will come to in a minute. 
The main changes recommended by the select committee as I say with a couple of exceptions are supported by New Zealand First. They add value to the bill as presented. These include some important exclusions from patentability in relation to public order and morality by adding some examples which I note are a process for cloning human beings a process for modifying the germ line genetic identity of human beings an invention that involves the use of human embryos for industrial or commercial purposes an invention that is a process for modifying the genetic identity of animals that is likely to cause them suffering and so on. Those are very good examples and are good additions to the legislation as recommended by the committee. 
Then there is a very clear requirement in clause 37(1) for the description of inventions using the words “disclose the invention in a manner that is clear enough and complete enough for the invention to be performed by a person skilled in the art;”. Further the recommendations preserve pre-grant opposition rights which we agree with and in clause 138A they provide for protection against infringement proceedings where a person had been continuously exploiting an invention immediately before the priority date. Such a person would be allowed to continue using the invention even if another person or company obtained a patent for the invention without being subject to infringement action. We think those are all very sensible additions to the legislation. 
However coming to the reservations that we have we also believe as the Labour representatives have stated that new clause 10A(1) and (2) in Supplementary Order Paper 120 is problematic as recommended by the Minister’s amendment which frankly seems to me to be complete gobbledegook. I believe that Supplementary Order Paper 123 provides for a much better alternative in that it states: “Subsection (1) does not prevent an invention that makes use of an embedded computer program from being patentable.” When you compare that with the amendment recommended in Supplementary Order Paper 120—which says: “Subsection (1) prevents anything from being an invention for the purposes of this Act only to the extent that a patent or an application relates to a computer program as such.”—to me that is very problematical in that it is capable of a number of different interpretations. I think I know what it means but I am sure that there will be others who would have totally different interpretations. So from a completely clarity point of view I think the amendment in Supplementary Order Paper 123 is much better. 
New Zealand First also supports Supplementary Order Paper 124 which was introduced by the Green Party concerning the non-patentability of organisms whether genetically modified or not. We think that is a useful addition which should be incorporated into the bill. We will therefore support that amendment for those reasons. 
Otherwise the recommendations of the select committee are supported by New Zealand First as is the bill as a whole. As I said at the beginning I think this will update and improve New Zealand patent law make it compatible with overseas countries and be a good template going forward for people in this country who rely on patent rights for their business for the economy and therefore for the country as a whole.