Dalziel Lianne: Patents Bill — Second Reading 
Text is incorporated into the Bound Volume 
Dalziel Lianne: Patents Bill — Second Reading 
[Sitting date: 12 September 2012. Volume:683;Page:5168. Text is incorporated into the Bound Volume.] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I am finding it difficult to follow why the Government is adopting the line that it is adopting on this particular bill the Patents Bill. We are so close to having I believe not unanimity obviously with some parties opposing it altogether but an overwhelming majority in this House in support of the bill that it seems crazy we have ended up in the situation where we are debating over a single clause in what is a substantial rewrite of patents law—which is of course well overdue. This bill was reported back from the Commerce Committee 2 years ago and as others have commented I was the chair of the select committee that considered this bill and we did put a lot of time and effort into this particular matter. To find such a substantial change introduced by the Minister by way of Supplementary Order Paper 120 simply notified to the other side of the House without any consultation or any engagement with us over why the Government has adopted this position I do not believe makes for very good governance of an issue that is of such major importance. 
I have to say that I had a really good working relationship with the previous Minister of Commerce on this matter when I was the spokesperson. I consulted with him all the way through the select committee process. Indeed when we were dealing with this very issue it was the subject of quite a substantial conversation. I think my colleague Clare Curran joined me on that occasion and we really nutted through the issues. We felt both of us on this side of the House that we had been well received and that we had reached a good outcome. 
Unfortunately what seems to have happened is that there seem to have been some discussions behind closed doors which this side of the House has not been privy to but which were the subject of quite a substantial blog post. I want to comment about this blog post and I am going to table it in the House because it actually raises some serious questions. I do not have a specific date on this blog post but it looks like it was just after the bill was reported back in June 2010. What it does is it reports on a meeting. I understand that this blog post has now been taken down from the patents4software website so there is an element of a sense of cover-up around this which I think people ought to be aware of. It quotes an official who is still working in the competition trade and investment part of the new “Mobie” I think it is called now—the Ministry of Business Innovation and Employment formerly known as the Ministry of Economic Development. I also understand that the person who wrote this particular communication that is the subject of the blog post one Brett O’Riley is now also working for the Ministry of Business Innovation and Employment. Not that the two factors necessarily show a conspiracy but it is ironic that in fact the very person who wrote this is now working for that ministry in this particular field. 
The opening statement is: “New Zealand looks like its reversing course on software patent protection.” That is the opening statement. So that means that there is a very clear understanding that the Government straight after the select committee had reported back to the House in good faith with very explicit wording—the bill stating “A computer programme is not a patentable invention.”—we have the statement: “New Zealand looks like its reversing course on software patent protection. On June 9 there was a meeting between representatives of the NZ Ministry of Economic Development (MED) and representatives of NZICT group.” The NZICT group the New Zealand Information and Communication Technologies Group are the big boys. They are the big players in this field. 
Hon Trevor Mallard 
: Microsoft. 
Hon LIANNE DALZIEL 
: This is Microsoft and the rest of them. 
Hon Trevor Mallard 
: Are any of them owned in New Zealand? 
Hon LIANNE DALZIEL 
: None of them are owned in New Zealand as far as I am aware. The blog post goes on: “It appears that New Zealand is likely to ultimately adopt an approach to software patents that is consistent with the EPO’s position. My thanks to”—and he mentions two people one from a company called Schwegman Lundberg and Woessner and the other from IBM—“for relaying this information. Here is the summary of the meeting provided by Brett O’Riley CEO of NZICT: Our representative delegation met with MED in Wellington yesterday. This was to discuss the formal submission we had made to Hon Simon Power last week covering our concerns about the proposed draft legislation. The end result of the meeting was extremely encouraging. While section 15 (3A) will not be removed (our ideal outcome)”. Excuse me is section 15(3A) removed by this Minister? Yes it is. So actually the Government has gone further than they thought they were going to get back then. 
The blog post continues: “Hon Simon Power has asked MED to work with the Parliamentary Counsel’s Office to redraft the section along the lines of the European Patent Convention. He has informed the Commerce Select Committee that Crown Law will be undertaking some redrafting before the bill gets to its Second Reading.” Well that conversation simply did not happen. “While it’s obviously not the end of the journey it was very pleasing to have a positive indication that the Government recognises there is a need to amend section 15(3A)”—this is the one that this Supplementary Order Paper 120 removes altogether—“‘to make sure it’s consistent with the intent of adopting European practice. While European law does restrict software patents this is positive progress and the view of our team is that is that this would be a good outcome for the New Zealand ICT industry.” 
Clare Curran 
: Which parts? 
Hon LIANNE DALZIEL 
: Not the ones that my colleague has just tabled in their submission in the House. 
Clare Curran 
: Not the Kiwi software industry. 
Hon LIANNE DALZIEL 
: The Kiwi software companies do not want this Supplementary Order Paper 120. 
The blog post continues: “In summary the MED confirmed earlier statements from Select Committee members … that the intent was to follow European law”—and I am not sure where that came from—and “The MED acknowledged that amendment is required to achieve this”. Then it talks about who attended the meeting. Then it talks about Rory McLeod director of the competition trade and investment branch who “began with an update on the Patents Bill clause 15 (3A). He described the decision of the Select Committee as being to move to a ‘normal patentable situation as in Europe’ that did not allow patenting of software per se. Rory then went into some detail (partly in response to questions we had raised) about what the Select Committee intent was: The intent had never been to ban software patents outright (and the MED would have had serious concerns about that if it were proposed).” Well that is precisely what we did. 
It continues: “Software should be treated like other technology so should have a technical purpose and be an inventive step to be patentable as in Europe.”—and that is the problem in Europe. “Not just any software would be patentable it would need to meet the above test. Embedded or not embedded is or was not the distinction that is intended. The signal that the Government wants to send is to follow European law and practice. The MED also now clearly acknowledge that clause 15(3A) is not adequate to convey this intent. It was great being able to present practical examples of world leading software being developed by Pingar and Aptimize”—if I have pronounced those correctly—“and hear MED recognise the importance of these companies being able to seek patent protection.” 
There was no mistake in what was discussed at that meeting and I am not surprised that this blog post has been taken down off the website and I am glad that I am going to have the opportunity to table it in the House because it is I think really important that we know that behind the backs of the select committee behind all of the proper processes that we had in place to deal with this major update of our patent law— 
Hon Trevor Mallard 
: If it happened in the States we’d call it corruption. 
Hon LIANNE DALZIEL 
: We would call it corruption in other countries but fortunately New Zealand is a corruption-free country so we would not call it corruption here. But there is no question that a process that had been fully agreed and properly worked through by the select committee has ended up being overturned by this meeting that we would not otherwise have known about. 
So it is quite clear that there has been quite a substantial amount of work done behind the scenes—truly behind the scenes—and I believe that Parliament has a right to know that this is going on and that we are opposing the changes that the Minister is putting forward. We invite the House to very carefully consider what has been laid before it and to perhaps talk to the Minister. And maybe the Minister when he has the opportunity in the Committee stage on this bill might actually reflect upon the amendment that my colleague Clare Curran has proposed in Supplementary Order Paper 123 because it is on that condition that we will support the bill’s passage through the House. 
I seek leave to table a post from the blog “patents4software”. 
The ASSISTANT SPEAKER (Lindsay Tisch) 
: Leave is sought for that purpose. Is there any objection? There is no objection. 






Document by leave laid on the Table of the House.