Friday, September 14, 2012

Patent party in the House

Fake Protest Part DeuxIt's always good to try something new. This week I gathered some of my work colleagues together and we watched the Second Reading of the New Zealand Patents Bill on the tellie. I didn't quite know what to expect but I wasn't surprised at what I saw.

A flurry of SOPs

In a previous post A makeover for the Patents Bill I mentioned Supplementary Order Paper (SOP) 120 tabled by the Government on 28 August. The three main changes proposed in the SOP are:

  • a sanity check on the computer program exclusion proposed by the Commerce Select Committee

  • amendments to encourage the use of digital technology

  • changes to the implementation date to recognize the fact the Bill has been waiting for a Second Reading for a while
There were two last minute SOPs released on 11 September, the day before the Second Reading. SOP 123 is a Labour proposal attempting to embalm the term "embedded computer program" in legislation. SOP 124 from the Greens proposes an amendment to the Patents Bill to exclude not only plant varieties but organisms (including plant varieties) and traits in organisms.

The Government angle

The Second Reading opened with a rather discordant duet by National Party's Minister of Commerce Hon Craig Foss and Labour's Clare Curran. I believe the draft transcript is available on Hansard.

National MPs Jonathan YoungPeseta Sam Lotu-IigaMark Mitchell, and Mike Sabin were all supportive of what was originally a Labour Party Bill. They touched on most of the aspects of the Bill on which most parties agree. I discuss these briefly below.

Greater confidence of validity

Under the new regime examiners will now be formally permitted to examine for inventive step. The new prior art base for examiners will include matter published or used in New Zealand or elsewhere. Examination is going to be tougher with a shift from 'benefit of the doubt' to 'balance of probabilities'.

The Bill provides several processes for third party challenge to a patent application or patent. These are opposition before grant, re-examination before grant, assertion before acceptance, revocation before the Commissioner or Court, and re-examination after grant.

Cultural Awareness

The Bill seeks to ensure that the interests of Māori in their traditional knowledge, and indigenous plants and animals are protected.

A Māori Advisory Committee will advise the Commissioner of Patents (on request) whether an invention is derived from Māori traditional knowledge or from indigenous plants or animals. If so, the Committee will advise whether commercial exploitation is likely to be contrary to Māori values.

Subject matter exclusions

The Bill excludes from patentability any invention where commercial exploitation of the invention is contrary to ordre public (public order) or morality.

The Bill further excludes human beings, methods of treatment of human beings, methods of diagnosis practiced on human beings, computer programs and plant varieties. These last two exclusions are the subject of the SOPs mentioned above.

The Opposition angle

Following the introduction by Clare Curran, Labour's Clayton CosgroveLianne DalzielDavid Cunliffe and Trevor Mallard spoke on various topics, with Mallard on both before and after the dinner bell.

There was talk of a meeting that occurred on 9 June 2010 between representatives of the Ministry of Economic Development (MED) and representatives of the NZICT Group. The implication is that somehow the NZICT convinced MED to draft amendments along the lines of the European Patent Convention's exclusion for computer programs.

This implication just doesn't make sense to me. In January 2010 the MED advised the Commerce Select Committee that a European-style exclusion was the preferred option.

How could the NZICT influence the MED in June 2010 if the MED had independently formed the same view months earlier? Could it be that MBIE (the new name for MED) is simply giving Minister Foss the same advice now as it gave the Commerce Select Committee back in January 2010?

Something else that I found a little confusing was a comment that "the Institute of Patent Attorneys ... support that amendment". I think the amendment being talked about is the Labour SOP.

I am a Council member of the New Zealand Institute of Patent Attorneys. I'm therefore in quite a good position to know what the NZIPA supports and what it doesn't. The NZIPA does not support the Labour SOP. Perhaps the reference was to the Institute of Patent and Trade Mark Attorneys of Australia. But they don't support the Labour SOP either.

The Greens put on a showing by Steffan Browning and Gareth Hughes. NZ First put forward Denis O'Rourke as a speaker.

The Greens support the Labour SOP and their own SOP. NZ First supports both the Labour SOP and the Greens SOP. Labour on the other hand supports its own SOP but did not (as far as I could tell) mention the Green SOP.

What next?

My main observation is that my colleagues and I will not make a habit of watching Parliamentary debates on the tellie. Another observation is that if I had to predict what will happen next, I would say that the National SOP will be adopted whereas the Labour and Green SOPs will fail.

As the Government said in a press release titled Progress towards modernising patent law , the Bill will continue to protect genuine innovations and encourage Kiwi businesses to export and grow. The changes will overhaul sixty-year old legislation and create a balanced patent system that will protect inventions and encourage innovation. The Bill will align our patent laws more closely with international best practice, and builds on initiatives that will help create a more productive and competitive economy.

Photo courtesy of author sheiladeeisme under Creative Commons licence.

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