Hague Kevin: Patents Bill — First ReadingText is incorporated into the Bound VolumeHague Kevin: Patents Bill — First Reading[Sitting date: 05 May 2009. Volume:654;Page:2881. Text is incorporated into the Bound Volume.]KEVIN HAGUE (Green):Clearly this area of law was long overdue for review. As such the Patents Bill contains quite a number of helpful developments that we are pleased to support. For example we support the tougher absolute novelty test and some of the specific exclusions from patent protection. Many of those exclusions have already been listed: human beings biological processes for human generation methods of medical treatment of humans plant varieties and inventions whose commercial exploitation would be contrary to public order or morality. The Green Party also supports the establishment of a Māori advisory committee to provide advice on patent applications involving indigenous flora and fauna. We further support the various process improvements to the ways in which patents are granted and how their validity may subsequently be challenged.However given that the review has been so wide ranging and was so overdue it is a great shame that the Government has not seen fit to unpick the fundamental ideas underpinning patent law. I liked the Hon David Parker’s use of the word “monopoly”. A patent essentially provides an absolute monopoly on the use of a particular idea. Proponents of patents argue that they are necessary to encourage innovation and thus the development of knowledge. Their assumption is that innovation will not occur unless there is a financial return and that a patent is the best way of providing such a return. Time does not permit a detailed analysis of that assumption but I want to focus on some areas where the use of patents is clearly counter-productive and poorly addressed—or not addressed at all—by the Patents Bill.I will begin by looking briefly at software. The bill proposes that software should be patentable; the opposite direction to that being pursued by the European Union. This is a very bad idea. The foremost theorist in this area is Richard Stallman. Stallman eloquently argues that the use of software patents stifles creativity massively reduces efficiency and can lead to whole areas of software usefulness remaining unexplored. Software patents are a substantial cause of software incompatibility for example. He draws an analogy with the composition of a symphony. Suppose someone had patented particular chord progressions sequences of notes or combinations of instruments playing at the same time. What sort of problem would Beethoven have had? We regard him as a brilliant and innovative composer but he wrote symphonies using a musical vocabulary comprised of very many musical ideas developed by multiple composers. Stallman argues that even a genius software programmer must draw on a standard vocabulary of programming ideas. If software patents are permitted then the programmer cannot draw on such ideas without infringing patents. The consequences are that whole areas of software development are avoided lest software developers breach patents and in other areas inefficient or otherwise unsatisfactory programmes remain in use because it is not technically feasible to develop better options because of this restriction. In this area patents are clearly a brake and a hindrance on innovation.Stallman also makes some other points. He points out that the 20-year duration of patent coverage may be reasonable for a new mousetrap but is effectively for ever for a software idea—think back to the software that we were using in 1989. He also notes that it is effectively impossible for somebody developing a new program to be aware of all the patents that may apply to her or his area of work. In the United States there are over 100000 software patents—possibly as many as 200000. It is hard to count because they keep growing and growing at a faster and faster rate. It is not possible to be aware of all the patents that may apply and in general it is not feasible to research the matter.I do not intend to again rehearse the arguments over genetic modification. This bill will enable the patenting of genetically modified organisms. This ability is not required for scientific inquiry or for the development of knowledge—in fact it will inhibit these—but rather for the commercial exploitation of genetically modified organisms. This is absolutely opposed by the Green Party and by most New Zealanders. Professor Jonathon King for example told the Royal Commission on Genetic Modification that the “undermining and reversal of the biomedical culture of open communication and exchange is one of the most destructive impacts of life patents.”We know that this issue is also a concern for Māori whose interest is often the protection of collective and traditional knowledge rather than its commercial exploitation. The assumptions implicit in patent law are at odds with the promotion of knowledge and ideas for non-commercial purposes. Professor King also raised with the commission the enormous public disquiet over what he called “the transformation of biological entities into private property through the use of intellectual property rights.” Although it is good to see some protection against patenting of indigenous flora and fauna there is no such protection in respect of micro-organisms. I cannot see any argument or basis for this distinction. This whole area of the relationship between biological entities and traditional knowledge and so-called intellectual property rights is one that we know is of particular concern to Māori. As far as I can tell consultation with Māori on this issue including this bill has been minimal at least since the 1990s.Another area in which the existing patent approach is counter-productive to progress is that of international development. As George Monbiot points out “Because capitalism is built upon the lending of money at interest capitalist economies are driven by the need to repay debt which is why survival in this system is contingent upon endless growth.” Monbiot points out that endless growth is physically impossible but the rich world attempts to achieve this by bleeding the poor world of natural resources and human capital. One of the methods for doing so is through the insistence that poor countries open their borders to free trade and capital flow while conveniently ignoring the fact that the rich countries became rich largely while operating protectionist policies themselves.Another mechanism is through patents. Of all patents in the world 97 percent belong to corporations in the rich world. This means that in order for poor countries and their economies to gain access to new technologies they are forced to permit these corporations to operate from their soil. These corporations usually repatriate the profits so the economic benefit to the poor economy is slight and the cost of being able to access new technology in this way is usually environmental degradation and exploitation of labour. In Monbiot’s words: “Corporations wishing to invest abroad seek the cheapest of all possible conditions: low wages; no obligation to pay for pensions health insurance or other benefits; low health and safety and environmental standards; low tax; and few regulations to prevent them from extracting as much money from the nation as they can while leaving behind whatever mess they choose to make”. Patent laws and requirements through the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights are used by big corporations from the rich world to maintain privilege by exploiting the poor world.The fact is that we have only one world. We are all in this together. It is evident that the global economy needs fixing that our international institutions need reform and that wherever we live in the world we are the victims of environmental degradation wherever it occurs. We need a global Green New Deal. These times demand not tinkering but a fundamental rethink of many of the constructs that have been used to facilitate business as usual. Patent law is one of these. What we need instead—or at least in addition—is the development of some non-antiquated ideas for how knowledge and new ideas can be encouraged for the benefit of us all. It is not as if there is a dearth of such ideas. In fact there are plenty such as open-source software Creative Commons and the flexible application of intellectual property rights to facilitate development in the poor world.The Green Party would be very happy to work with the Government and with other parties to develop positive ways of encouraging innovation without stifling some of the most important reasons for doing so. The bill is not fit for this purpose and the Green Party will oppose it.