Curran Clare: Patents Bill — In Committee Third ReadingText is incorporated into the Bound VolumeCurran Clare: Patents Bill — In Committee Third Reading[Sitting date: 27 August 2013. Volume:693;Page:12968. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South): In speaking to Part 2 of this Patents Bill I would like to take us back to the overarching principles that my colleague David Parker referenced in his speech on this part of the bill earlier this afternoon. What this bill is trying to achieve is the balance of two interests. Those interests are around allowing innovators to profit from their inventions and second ensuring that the monopoly rights that accompany patents are not unduly exploited. Those principles lie beneath every part of this Patents Bill and as I will set out in a minute there have been deliberate exceptions set out in this bill because it is acknowledged that in order to modernise this bill we had to look at the things that should not be patentable. Part 2 is the part that excludes software from being patentable. We have had a detailed discussion about that. But it also excludes a number of other things.The other thing that underpins this bill is the idea and the knowledge that our 1953 patent law is out of date that it needs updating and that it is too generous to people seeking patents. One of the things that my colleagues from the Greens and even New Zealand First need to think about when we are actually discussing this bill is that there has been a push back to say that not everything that has been patented before should be allowed to be patented. There has been a significant relaxing I suppose of that environment so that the ability to go out and get a patent for whatever you like is no longer there. It is just no longer there. It is actually really important to bear that in mind.With reference to the organisms debate it should be noted—and let us be very clear here—that you cannot patent any living thing in New Zealand as it occurs in its natural form. You can patent only novel processes or cell lines or genetic modifications. I note that the Minister of Commerce is nodding his head vigorously. It would be good if he perhaps took a call to actually point that out.I will draw everybody’s attention to the criteria for granting a patent where those criteria have to align to those that apply in other countries. A patentable invention is an invention that is a manner of manufacture it is novel—so it has to be new—it has to take an inventive step that is not obvious it has to be useful and obviously it is not part of the exclusions which I am going to list again in a minute. Those criteria have to be met. They have to be satisfied before any patent application can be accepted and granted. I am just going to read again that you cannot patent any living thing in New Zealand as it occurs in its natural form. That is a really important principle and that is why the Labour Party is not supporting the Greens’ Supplementary Order Paper 124 because as we see it the bill has gone through an extensive select committee process where all of those issues were discussed and were addressed. Yes we can have further debate about them but what the Supplementary Order Paper proposes is extensive. It is extensive in terms of compromising the intent of the Commerce Committee as it stood back in 2010.There have been extensive speeches given this afternoon by a number of my colleagues about the impact on our clean green tech industries and the importance of being able to patent new processes in order to be able to progress them. There was the reference toLanzaTech and the world-leading climate change work around natural bacteria which cannot be patented. It is the process of carbon monoxide conversion to create ethanol for fuel that is patentable. It is the process; it is not the organism itself. I did want to point that out. We had a very passionate speaker in my colleague Megan Woods giving a great defence and being very proactive around what sort of economy we could and should become—a diversified economy.The other thing that Part 2 does in this bill is to set out exclusions from patentability. They are set out in clause 14(2) which states that “commercial exploitation must not be regarded as contrary to public order or morality only because it is prohibited by any law in force in New Zealand.” There are half a dozen exclusions from this of which computer software is one. We have discussed that at length and I am not going to go into that but the others are also important. Because the legislation brings in that concept of morality ultimately that is the cover. That is the cover for many of the issues that are being brought up in the Chamber this afternoon. Clause 14(1) includes examples of non-patentable inventions: “an invention that is a process for cloning human beings:”—no part of a human being can be patented—“an invention that is 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 without any substantial medical benefit to human beings of animals or an invention that is an animal resulting from such a process.” Those matters are important. Those are examples of some of the things that cannot be patentable. Also clause 15(2) includes: “An invention of a method of treatment of human beings by surgery or therapy … (3) An invention of a method of diagnosis practised on human beings …” and then the computer program. Those matters are significant. They are significant. There was in-depth discussion by submitters and discussion in the select committee with officials on all of those matters and I think that on balance the select committee ultimately got it right.Finally I just want to refer to the discussion around theMāori advisory committee and Supplementary Order Paper 348 introduced by Metiria Turei. We on the Labour side of the Chamber feel that there is a question mark around just what that Supplementary Order Paper would actually achieve. Just let me reiterate what the bill does around the establishment of theMāori advisory committee. It would advise the Commissioner of Patents in relation to patent applications for inventions involvingtraditional knowledge or indigenous plants and animals. That committee has to be allowed to function in order to progress this discussion and I certainly think that there is a case for further discussion on this matter. It is very significant but we have to get on and allow that committee to actually start to function and to provide that advice that can be used by the Commissioner of Patents to assist in determining whether those inventions are novel whether they involve an inventive step and whether the commercial exploitation of those inventions will be contrary toMāori values. We need to put this bill into practice so that we can actually get on and do that. I do want to note that the establishment of theMāori advisory committee was recommended by the Royal Commission on Genetic Modification. This is again a significant part of the bill. I certainly think that it needs further discussion but I think we have got to get on with it and test it and see how it works.