Patents Bill

I want to address, respectfully, Steffan Browning’s proposed amendment to clause 15 of the Patents Bill in Supplementary Order Paper 124 and explain why it is that the Labour Party will not be favouring that amendment. Thank you for consulting us about it and the way in which you have gone about that.

The explanatory note or the letter that came with the Supplementary Order Paper said that one of the things that the amendment intends to do is to stop people—in its current form, it says it encourages biopiracy of indigenous resources. I understand the member’s concern. There have been some quite, I suppose, famous cases around the world that have been referred to. One relates to the scientific properties of the Neem tree, which is an Indian tree, as I understand it. Have I got that right? Yes, it is an Indian tree, the extracts of which have long been used as a control of insects and other fungal infections in trees. There were patents taken out that were then said to have been used to stop the traditional uses of the Neem tree, despite the fact that that had been a long-standing practice.

Secondly, there were assertions—and I do not understand enough to know whether all of these assertions were right—that it seemed unfair that the insecticidal and fungicide effects of Neem tree extracts could be commercially taken by someone who claims that they have discovered the chemical reason that that is occurring in a way that prevented other people from doing it, despite the fact that they had always done it. I agree that that seemed unfair. If that was properly described, I have problems with that. But that does not mean to say that I think that this amendment can be supported, because what this says is that you will not be able to patent organisms, including plant varieties and traits in organisms, and that is the issue that I want to deal with.

We know that we have a lot of challenges environmentally in the world. One of the challenges that we have is that the form of energy that we use at the moment produces carbon emissions that are put into the atmosphere. We know that in order to reduce emissions, we need to do lots of things. One of the things that we may need to do is to bring forward scientific research into organisms that help prevent that from occurring, or enable other substitutionary forms of evidence that are not high in greenhouse gas emissions. For example, the conversion of plant material into biofuels may require, or may be advantaged by, the use of bacteria or other organisms that are discovered in volcanic vents deep at sea. These thermophiles, as I think they are called, are organisms that can survive very high temperatures.

I think there is a proper question to be asked, or to be asked by those who are researching in favour of making those discoveries, as to whether what they are discovering is something that is novel, that is of utility, and that was not known previously in a way that should be patentable. I find it hard to see a distinction—a hard distinction—drawn in respect of that sort of discovery that would mean that it should not be patentable, and I think that the societal disbenefit of preventing patents in those areas would be that we do not have discoveries that help us overcome some of these other planetary challenges that we face.

So I think that if I properly understand that—and it is possible that my understanding is wrong; if it is, I invite Mr Browning to point it out. I am not here saying whether those discoveries should be made through, or variations in the organisms should be—I do not think this is, through this bill, a debate about genetic modification or more traditional technologies. I think the same principle applies to both here, which is not to advocate for genetic modification; it is just to say that the same principle applies.

If I give another example, the technology that is being pursued by LanzaTech is taking the flue stream gases of steel mills that are carbon monoxide, I understand, rather than carbon dioxide, and using a process to convert that carbon monoxide into ethanol, which is a fuel that can then be used as a substitute for fossil fuels. Overall, the environmental impact of steel production is reduced as a consequence. My understanding is that the process does involve organisms that are going to be modified through technology in order to make them more efficient so that that becomes a viable technology. LanzaTech could not do that and could not raise the money to make that advance in science if it were not for the protection that it gets through patents. My understanding of this amendment proposed by Steffan Browning is that if it passed, it could prevent that patent from being granted, which would then cut off the money for LanzaTech—

💬 Hon Member: No.

Well, it would not cut off the money for LanzaTech? I think it probably would. If it could not get an economic return for its investment, it would be less likely to make an investment in it. For those reasons, based on our current understanding of this amendment, the Labour Party will not be supporting that Supplementary Order Paper.

I will address that aspect straight away in this contribution on the Patents Bill. In terms of biofuels, bacteria and other organisms certainly are intended to be used by some. They will be being used. Whether they need to be modified and whether they need patenting is a whole different matter. We are very, very keen on public-good science, and not everything should be tied up in commercial entities or operations. I can think back to when we had the Department of Scientific and Industrial Research and our Crown research institutions, which were seriously about public-good science and were very collaborative. Clearly, we are working as a country to try to get some sense of that back.

This need, it seems, to have everything put into a commercial context is very unfortunate—the novel and the utility. It should still be part of public-good science, and we have to be careful because this suggestion that there is a suppression on innovation by stopping organisms or traits of organisms from being patented is misleading. It is the same with ethanol from methanol conversions, and should LanzaTech be the only one going down that path when it is such an international need, as we acknowledge that we need to look at other forms of energy, then that is a very, very sad day. We have institutions and we have science in this country that does not need to be bound to somebody who ultimately would get a patent and then monopolise that. If it is so important—and it is—to work around the area of biofuels, it should not be able to be monopolised or controlled by a single corporate or owner.

So I have put forward Supplementary Order Paper 124 on this crucial area of making sure that companies cannot patent life, nor certain elements of life, because it goes right back to public expectations. That includes genes and proteins that exist in nature. We accept that patents are a statutory right. They were created hundreds of years ago for good purpose, but that was around things, not life. Patents should not be permitted over things that are fundamentally part of the natural world. No one has invented life or the elements of life, so it follows that no one should be entitled to a patent in New Zealand over life—in fact, anywhere.

Some of this comes back to some early decisions—I say “early”, but not hundreds of years ago. It was really in 1980 when life first got patented. It is a case known as Diamond v Chakrabarty and it concerns a decision about a bacterium. Chakrabarty had isolated a particular bacterium. Even then, he was able to get the patent, but he admitted that he simply shuffled genes about. He said he changed bacteria that already existed. He did not create a new form of life; he merely intervened in the normal processes by which strains of bacteria exchange genetic information. Genetic modification, of course, is an extension of that. It goes much further. That same genetic modification has caused the monopolisation of major parts of the global food supply. So if you think of soy, corn, and canola, they are some real fundamentals in terms of the international food supply, and they are monopolised and they are controlled because there are patents on some aspects of the technology behind them.

We cannot afford, intentionally or not, to allow for the patenting of life forms or the elements of life that exist in nature. A colleague over here was right in saying that we believe it will encourage biopiracy of indigenous resources, and it turns those life forms into just mere commodities to be used for profit. This is life that pre-existed us as well, and to be putting that into some commercial, separate ownership is inappropriate. It also puts up barriers to the free flow of scientific research, and in the material I circulated I pointed out that there was a case—and it has just been won in the Supreme Court in the United States—where a breast cancer cell and an ovarian cancer cell had been patented, and that was blocking research in that area. Anything around life, any genetic material, is everybody’s, and, again, my colleague spoke about the fact that the helix of DNA is part of the natural world. Sure, we are getting to understand it and there is some fantastic science, and there are individuals who are discovering new aspects all the time, but that is ours, that is everybody’s, and it should not be included.

The issue, as I was saying, about breast cancer and ovarian cancer and those genetic mutations that were identified resulted in a huge uproar. There were multiple groups, scientific associations and medical people, who pushed against that decision until it was reversed. We have to be careful here in New Zealand when we look at some fantastic new approaches and patents around computer software and programs. Here we could make another clear statement in a similar league by supporting this Supplementary Order Paper. Allowing the passing of this bill without supporting the Supplementary Order Paper will lead to the continued blocking of open research and to profit making from our collectively owned genes and resources, and, importantly, it will continue the process of stealing those resources, including the intellectual property of Māori.

Some industries seek out organisms, and they draw upon this intellectual property to get control, and to get control of the food chain. One of them, of course, is internationally known as Monsanto and it has just created case after case in the courts. It has put farmers out of business, and it has really distorted where farming, where agriculture, where the food supply should naturally lie. It has also had an effect on the availability of the diversity of seed available to everyone, from farmers down to home gardeners. There is a huge reduction in the amount of genetic material available, because these monopolies that have got greater and greater control through some patents and just some small angles have also ended up buying up the seed companies and have restricted others’ access to those same seeds.

So what would the amendment do? The amendment would specify that life is not a patentable invention. Currently, the bill already excludes some aspects of life—those exclusions being human beings and their biological processes. That is great. That is a very good exclusion, but it does not go far enough. The invention of a method of treatment of human beings by surgery or therapy is a very good exclusion. The invention of a method of diagnosis practised on humans is another. The list of exclusions includes computer programs, which is a fantastic shift. Plant variety, because it is already very deeply and solidly covered under the Plant Variety Rights Act, still leaves many life forms, and those elements of life are still part of it.

Plants and humans aside, the bill does not go anywhere near far enough. Animals, bacteria, viruses, cells, and algae all need that extra protection of the Supplementary Order Paper—and their traits. Even a piece of DNA, of genetic material, from those is something that is ours. It is everybody’s. Everybody on this planet owns that, and letting someone manipulate it, even slightly, is something quite different from inventing a thing. There is a moral level. [Bell rung] Life is not—I suppose I have done my time.

I am going to call—I will just explain. You have had two calls in a row, and we do not normally give a third one when someone else is calling, so I am giving the call to Dr Megan Woods.

I am very happy to take this call on the Patents Bill, and to hear further from the member Steffan Browning, because I think we are discussing some very important issues around his Supplementary Order Paper 124 this afternoon in the Chamber. There are some very complicated issues around the level of debate informing a number of people. I want to join with my colleague David Parker in thanking the member for the consultation he has done with us around the Supplementary Order Paper that he has put up. It was a discussion that was engendered amongst the caucus too, which we have been able to have.

I think that what we are discussing this afternoon cuts to the heart of what a 21st century economy might look like and what a high-tech 21st century economy in New Zealand may look like. The 20th century in many ways in New Zealand was transformed in the 1980s by New Zealand researchers and New Zealand commercial entities in 1987 being able to protect their plant variety rights as New Zealand moved more into the intellectual property sphere in terms of what we did around protecting our intellectual property rights. The fact that we had protectable rights around plant varieties saw Zespri invest $20 million in developing Hort16A, which is the kiwi gold kiwifruit that has gone on to earn that company billions of dollars. It saw the New Zealand Apple and Pear Board, under its various incarnations, invest similar amounts of money in apple varieties and it gave us the Jazz apple. What we know is that if we are going to have high-value, high-tech, sustainable industries in the 21st century, we do need them to be commercially viable and we do need people to invest in that research and development.

Mr Browning raised some very interesting questions in his first contribution—one of what I am sure will be many on this issue—about public-good science and the role that public-good science should play in our society. Public-good science is hugely important, but I think it is very important to remember, when we are talking about whether or not we can protect biotechnology intellectual property, that it is not a dichotomy—it is not either/or. I started talking about the transformation that the New Zealand economy could undertake in the 20th century, through the protection of plant variety rights. I truly believe that the ability to have protectable intellectual property around organisms, and particularly micro-organisms, in the 21st century is going to be a similar transformational boon for the economy. It is something that New Zealand cannot be left out of and something that we have to make sure we have progressive and world-leading legislation around, to make sure it is fully capable of dealing with these situations.

In terms of whether or not, as Mr Browning has suggested, we might put commercial protections around knowledge, and whether that will actually stifle the ability of researchers and the way in which researchers conduct themselves and the ability for knowledge to flourish in this country—the way in which we need knowledge in this area to flourish if we are going to have the kind of economy that we on this side of the Chamber know is our future. I do not think that protecting will do that. We have seen an analogous situation in what has happened in the fields of our traditional crop sciences, around the ability to protect the horticultural and arable crops. We have not seen a stifling of interactions. We have not seen a stifling of the ability of researchers to get together. Something that we always have to remember is that this research happens on a continuum. The fundamental basic research is still going to be published in the scientific journals. It is still going to be subject to peer review. It is as we get down the chain and we look more at the applications of this knowledge that the protections come into place.

Let us think about what it is that a patent process does, and what would happen if we do not have a patent process. If we do not have a patent process, what will happen is that industry and commercial entities will be less likely to let their scientists and their researchers share their knowledge and work with other collaborators. What they will rely on is know-how—trade secrets and know-how. But if they go through the patent system, then there is a clear chain of documentation. There is a clear chain that lays out the research path that it has been put on, and a clear chain of who the researchers working on it are. Part of the patenting process, after all, is about making that knowledge public. We need to see whether there is prior art. We have to consider what research has happened in the past in this field, so these are things that I am confident will allow our biotechnology sector to flourish in New Zealand. I think that this new economy, the biotech economy, is an important part of our future going into the 21st century.

I want to consider some of the ways in which micro-organisms might play a role in a 21st century New Zealand economy. One of the things that we have to absolutely grapple with in this century is the idea of greenhouse gas emission, and how, in an agricultural economy and an agricultural society and country, we are going to manage that. Bacteria and micro-organisms can play a crucial role in this. The photosynthesis that happens via bacteria is so much more rapid than photosynthesis that occurs through only plant material. Using bacteria in our soils is actually a way for us to reduce our reliance on nitrate-rich fertilisers in our soils. There are huge environmental gains for us to be made by having the ability to use these micro-organisms in our agricultural practice, but the only way that we will get industry to invest, to commercialise these products, and for us to be able to use them is if they can see a viable business model that operates around them. Being able to protect their intellectual property for the millions of dollars of investment that they are going to make is absolutely vital to this.

We have seen that the popular science literature is full of ways in which bacteria and micro-organisms are going to be a huge part of our finding a sustainable path for the 21st century. Toxins that can usually last in soils and sands for up to 10 years can be broken down in a matter of days through the use of bacteria. Imagine what we could do in terms of cleaning up around spills if we have these high-tech, high-value products that can be used to do that. But we need to encourage industry to invest in this. Yes, our public-good science and our universities absolutely have a part to play, and that is something that I believe in passionately. I believe that we need our universities to be “critic and conscience” and free to publish, but we also need to have the part of the chain where we can commercialise this knowledge well-though-out and part of a sophisticated economy that is capable of taking us forward. It is about the ability to protect the knowledge around these organisms, and particularly even the organisms themselves, because that will be our competitive advantage in the 21st century. It is our raw natural product of our talent and our ability to work in this field, put together with what we have always done well, that will take us into the 21st century.

What we know is—and my colleague David Parker talked about it and Mr Browning addressed it—the fact that biofuels is something that we know are going to be part of the 21st century. Bacteria and micro-organisms are an absolutely crucial part of this technology. Without the ability to build a business model around it to see how it stacks up, and to know how it is that a company can make a commercial gain out of this, it will not be the way.

Of course there need to be limits on this. We need to be able to protect the ability for us to have surgical procedures and the things that there is a morality around. They need to have limits. But the legislation as it currently stands offers those protections. We do not need this amendment. All this amendment will do is stifle the ability to innovate when actually there are some very elegant solutions that have been well-thought-through, that have been worked hard on by this Committee, and are indeed in this current piece of legislation. Labour will not be voting for this Supplementary Order Paper. It has been an interesting discussion and I thank the Committee for this discussion.

I raise a point of order, Mr Chair.

The CHAIRPERSON (H V Ross Robertson): Ah, point of order. The honourable member Metiria Turei. Tēnā koe, Ms Turei.

Thank you, Mr Chair. Tēnā koe. I am glad you are so relieved. I seek the leave of the Committee to amend a Green Party vote on Part 1. We mistakenly opposed Supplementary Order Paper 237 when we should have voted in favour.

Is there any objection to that course of action being taken? There is none. The vote shall be amended. Thank you. Kei te pai.

I hope you are similarly relieved by the content of my speech. I have Supplementary Order Paper 348 on the Table, which amends various clauses within this Patents Bill, including at least one clause in Part 2 and a substantive one in Part 6. I would like to take the opportunity to talk with members about Supplementary Order Paper 348. It does two main things. First, it removes the advisory aspect—or the dominance of the advisory aspect—from the Māori committee and makes the recommendations of the Māori committee concerning patents obligatory on the Commissioner of Patents and the decisions that the commissioner makes. Second, it removes the commissioner from the appointment of members to the Māori committee, and instead replaces that person with the Minister of Commerce.

I want to briefly outline the issues around why Supplementary Order Paper 348 was put together. We have committed to making further changes to intellectual property law to give effect to the Wai 262 claim and the Waitangi Tribunal report Ko Aotearoa Tēnei. We want first to just acknowledge the original claimants of Wai 262, which was lodged 20 years ago—more than that possibly—by members of Ngāti Kurī, Te Rarawa, Ngāti Kōata, Ngati Porou, Ngāti Wai, and Ngāti Kahungunu, and acknowledge that none of those original claimants is still alive. All have passed on. We acknowledge the support of those claimants, particularly Saana Murray and Dell Wīhongi, who were so instrumental in fighting the incursion of genetic engineering into our environment because they believed with all their hearts that we must protect the mauri of Te Ao Māori not for themselves or for ourselves but for their tamariki and for our mokopuna to come.

The issues here concerning patents have a very long history—a very long Te Tiriti - based history. Unfortunately, in the way that the bill has been prepared and the select committee process for this bill, that history has been largely ignored. Although we cannot fix that failure during this Committee process, we can make a small step to try to remedy at least part of that failure. So we have Supplementary Order Paper 348 on the Table, which meets some of the Māori submitters’ concerns about the nature of the Māori advisory committee and gives that committee more authority and more decision-making power in the decisions around patents.

We will be clear. We support this bill because it makes some significant improvements to patent law in New Zealand, ruling out patents on humans, on methods of treatment and diagnosis, on plant varieties, and on computer programs. I acknowledge the work of my colleague Gareth Hughes, which was instrumental in campaigning to make sure that those protections or exclusions were put in place. These changes are important and they are way overdue.

But the bill does not deal with the issues that were raised in Wai 262. It does not deal with the issues that were raised by the tribunal in Ko Aotearoa Tēnei. That means there are serious gaps and flaws in it. We acknowledge that. In supporting this legislation we acknowledge those gaps. Our support comes with the knowledge that there is no real progress on mātauranga Māori here in this legislation.

The reason we have put forward the changes in Supplementary Order Paper 348 is to at least give the Māori world view—mātauranga Māori, Te Ao Māori—the opportunity to have a genuine say at the table. I would just refer members to the Waitangi Tribunal report. The tribunal was very careful and very measured—it has had some criticism for being far too measured, I have to say—in stating its view on how Māori should be part of the decision-making process around patents. It said: “The Treaty of Waitangi gave the Crown the right to govern and enact laws, but that right was qualified by guarantee of tino rangatiratanga … for iwi and hapū over their ‘taonga katoa’ … The courts have characterised this exchange of rights and obligations as a partnership. In this context, tino rangatiratanga means that iwi and hapū are entitled to exercise authority over their mātauranga, and to exercise authority over their relationships with taonga such as cultural works and parts of the environment that are significant to their culture and identity, so that they can fulfil their obligations as kaitiaki.”

So that sets the framework for how these issues need to be considered by the Crown. The tribunal then went on to say that its recommendations include, in relation to changes to patent law in particular, “the establishment of a Māori advisory committee to advise the Commissioner of Patents and Plant Variety Rights about whether inventions are derived from Māori traditional knowledge or use taonga species;”—that is there in a very watered-down form in this bill—“establishment of a register of kaitiaki interests in taonga species; granting the Commissioner of Patents the power to refuse patents that unduly interfere with the relationship between kaitiaki and taonga; and introducing a legal requirement for patent applicants to disclose any Māori traditional knowledge used in research, and the source and the country of origin of any genetic or biological material contributing to the invention.”

This is essentially about making sure that there is Māori decision making about whether patents should proceed, based on mātauranga Māori and the Māori connection—their obligation to be kaitiaki of those natural taonga—and that there is an obligation on those seeking patents to provide information about those patents from a Māori point of view. That is good. That means that when those organisations, those companies, those researchers, and those inventors are in this country, this Te Tiriti - based country, they need to take as their first principle considerations of where Māori interests lie in the work they are doing, whose taonga they are using for the invention, how they have communicated with those people who are kaitiaki, and how they then work with those kaitiaki to make sure that the mātauranga Māori is respected, restored, and protected. That obligation should be on those who are making the applications. It should be on the researchers and on the inventors.

We must make sure that Māori interests are maintained and upheld from the very start. The current law simply does not deal with any of that at this point. It does nothing about that. We cannot fix that in this bill at this point. It does mean that at some point the Government is going to have to—well, we would very much like the Government to—take the tribunal report, the findings, and these recommendations very seriously and find a way to implement them in this new patents law.

We understand that it was not widely understood or acknowledged at the time that the bill was drafted and at the time that the Commerce Committee heard the submissions. Now that we do know, now that we have the report, and now that we have more information and understanding about how the law could better reflect and incorporate mātauranga Māori and Te Ao Māori into its decision-making processes, we have an obligation as a Parliament to make it happen. This is what the Treaty relationship requires.

The Green Party will be supporting this bill. We urge members to support our Supplementary Order Paper 348 around the Māori advisory committee, to at least give some opportunity for Māori to be decision makers over those issues that are most important to them. It is a small but significant step that could be made today, to take the issue just a little bit further, and then for us to find a way to work together in the future—and in the very near future I would hope—to really bring these issues from Ko Aotearoa Tēnei to the fore, and further amendments to patent law and intellectual property law. Thank you.

I rise to speak to this Patents Bill. I want to start first by agreeing with the previous speaker, Metiria Turei, that the Wai 262 matters need to be addressed. That is fundamentally something that this Government has been very slow to work on, and Māori whom I speak with who have an interest in this area are incredibly frustrated with the lack of progress on that particular claim. There is absolutely no doubt that there are some very tricky details to sort through, but that is no excuse for not addressing them and for parking the work and not actually getting on with having that conversation. It is my understanding that that is the current state of things. The Minister in the chair, the Minister of Commerce, may like to take a call to correct me if that is not the case, and maybe explain what work is going on, because it does cut to the heart of the issue that we are debating here and to which I wish to return as I round out my contribution on this part of the bill, Part 2.

This part of the bill is, as I said, right there at the core. It starts out: “Patent may be granted for patentable inventions only”. In one sense we would say that that is an absolute truism, but then this part of the bill wants to set out what that means and what it does not mean, because we need to know as lawmakers exactly why we are putting these things in place and what the purpose is that we are trying to achieve. We talked about the wider public and social good in the previous part. This part of the bill lays out exactly what it is that that means.

There are many types of intellectual property. We are talking about patents that protect ideas and concepts, as opposed to patents for designs, which protect appearance, aesthetics, and the like; copyright, which protects the copying of things that are exactly the same; or trademarks, which are designed to protect a unique sign. It is distinguished from know-how, which is more around confidential information and is the kind of thing that is usually covered by contract.

So we are talking here about patents and what is patentable. There is a significant change that is picked up in this part. Clause 13 of Part 2 says that an invention that is patentable is one that is a manner of manufacture, is novel, takes an inventive step—that means it is not obvious—is useful, and is not excluded by other clauses that are discussed elsewhere, in clauses 14 and 15.

All of these criteria must be satisfied before a patent application can be accepted and granted. Currently, inventive step and usefulness are not part of the patent examination process. So this tightens up the law in a fashion that we think is very important. But we do not go so far as to say that we think that organisms, including plant varieties and traits in organisms, are not patentable inventions. That is because of the kind of economy that we believe there should be in New Zealand.

I should say that all members of the House—or, I believe, most parties—are going to be supporting this bill. We are all in agreement that we need to have patentable material and that it needs to be well defined, in the interests of New Zealand. What we are having a debate about in one sense is precisely how far this patenting should extend. The Labour Party has a strong view that we need a diversified economy, and that we need an economy that is based on new technologies, new inventions, new ideas, and new concepts. So we want to support legislation that encourages new patents, that encourages new inventions, and that encourages and protects the ideas generated by New Zealanders for reasons of greater social good, but also in the interests of New Zealand as a country. That is why we support the legislation, and that is why we think these tests need to be put in place.

The idea that we will not protect plant varieties, as suggested in Supplementary Order Paper 124, which Mr Browning has put forward, does potentially undercut the future prosperity of New Zealand. In the Labour Party we believe that we need to have a prosperous and flourishing economy in order to provide those social goods, and in a sustainable fashion, that we as a country would like to afford and need to afford. With high unemployment at the moment and an economy that is struggling, we see many of these things being cut, through a range of cuts by the Government.

In order to afford the health care and the education that we as a country would like to see, we need to have a prosperous economy. One way in which we do that is by protecting intellectual property correctly. A law that updates the understanding of what that might mean is very important to New Zealand’s future prosperity and to a diverse economy that is not susceptible to putting all our eggs in one basket and then susceptible to global trends in commodity prices, to use one very pertinent example right now, with the trade issues with China. This kind of legislation can encourage entrepreneurs to explore new ideas, to expand the base of human knowledge, and therefore to also increase New Zealand’s prosperity over time.

There are exclusions that are explicit in this part of the bill, and we support these as well. The examples provided here and in several of the Supplementary Order Papers are intended to give a signal to law interpreters further down the track. For example, we know that exclusions are there to restrict access to necessary health-care, to treatments of human beings by surgery or therapy, to methods of diagnosis practised on human beings, and to biological processes for their generation in respect of human beings. There are others that are here as examples, obviously intended as a guide.

If we look at clause 14(1) and beneath it, we have a series of examples that are designed to suggest a more general principle. It states: “An invention is not a patentable invention if the commercial exploitation of the invention, so far as claimed in a claim, is contrary to—(a) public order … or (b) morality.”, and these things in that list are things that we would consider moral, potentially. Those kinds of exclusions are put in there for good reason. They are technical exclusions, but they are very important and are intended as a guide for future use. This part also defines the term of a patent, which is 20 years from the patent date unless certain fees that are appropriate to the filing of a patent are not paid.

The purpose of a patent is to enable the inventor to exploit the invention. Obviously, it is to encourage them to invest and therefore reap a reward further down the track. The various, what shall we call them, protections—is the right word—put around that throughout Part 2 are there to make sure that those things are looked after. Subpart 3 is about who may be granted a patent and it covers technical details around co-owners of patents. We know that once you add a few more people into the mix, these things can become more complicated, and it is good that the department has worked through the detail in that respect. Part 2 also gives power to a commissioner to give directions to co-owners, so there is a discretion clause in here—clause 25 in Part 2, Subpart 3—that gives the commissioner some discretion. That seems appropriate in the context of this legislation, so that we do not get perverse outcomes from the legislation.

But, to round out this contribution, we in the Labour Party are uncomfortable—very uncomfortable—with the exclusion of organisms, especially considering the way in which some of our more prosperous inventions have come from that area. An example is the kiwifruit industry, as alluded to by my colleague Dr Megan Woods earlier on. We know that patents such as the Hamilton jet and so on are the trademark—not the trademark, excuse the pun. They are the—

💬 Hon Maryan Street: Hallmark.

—hallmark. Thank you to the Hon Maryan Street for that tip. They are the hallmark of a New Zealand that we would want to see, going into the future. It is that kind of inventiveness that our very good education system has produced. We produce quality graduates who are smart thinkers. We want to ensure that New Zealand’s prosperity is built on that creativeness.

I am looking forward to hearing a contribution from the Minister because it is a very important issue for this bill as to whether these inventions are excluded or included, and I am interested in his view on this matter. He has been strangely quiet—perhaps a member of that rare species of parliamentary wallflower whom the public would happily have us patent in order for more widespread exploitation. But I am sure that the Minister will take a call, and I look forward to hearing why it is that he thinks this Supplementary Order Paper should be included or excluded. Thank you.

I call the honourable member Denis O’Rourke.

Thank you, Mr Chairman—a very good choice. The Minister of Commerce’s amendments in Supplementary Order Paper 120 as they apply to Part 2 will be supported by New Zealand First, and New Zealand First will also support Steffan Browning’s Supplementary Order Paper 124. We will also support his Supplementary Order Paper 336 amendments on Part 3, which are only inconsequential amendments.

As he points out, the Patents Bill allows many life forms to be subject to patentability, and this should not be the case. We agree with the reasons he gives for that—in particular, because it may encourage piracy of some of New Zealand’s indigenous flora and fauna, turning life forms into commodities to be used for profit. There is also the problem of the barriers to scientific research that it may create. We think that is a very significant issue, because it is not in the interests of any country at all that scientific research should be inhibited in any way whatsoever. That is possibly an unintended effect of the bill, but it is one that we take very seriously.

Life forms, however they come into being, must not become the exclusive property of anybody or any corporation, and free access to them by everybody—especially the science community—should be clearly preserved, in our view. As a matter of principle, nobody invents life forms. No matter how they may be discovered, manipulated, or used, they are not actually invented. Even if a life form can be altered to display characteristics different from similar forms found in nature, this is still not an act of invention by humans. It is just a manipulation of the life form already subsisting in the natural world. So, in the end, for people who own the traits created by such manipulation, such as the seeds, it is just, in fact, a method of securing a monopoly, which we do not necessarily see as positive. This must not be allowed or encouraged. It is sufficient that those who create such traits will have a head start in exploiting them.

I know that where I live in Canterbury there are companies overseas that send seeds to Canterbury to be grown first, because, of course, New Zealand is a season ahead of the rest of the world. Having been grown and reproduced, the seeds can be used very quickly in other parts of the world. That is the advantage those companies would have from the seeds, so there is no need for them to be patented. In fact, it is better that they should become as widely available as possible in due course, for the potential benefit to all humankind.

As Mr Browning points out, the bill prohibits only some life forms from patentability. It says, for example, that human tissue cannot be patented, whether for treatment or therapy purposes or other such purposes. Plant varieties are also not patentable, but they are protected under the Plant Variety Rights Act. The definition of that term in that Act means that there are still many life forms not covered. Therefore, we think a more comprehensive provision is needed in order to prevent patents for living life forms. Therefore, the Browning amendment would not compromise the development of exclusivity relating to products such as Zespri that have the protection of the Plant Variety Rights Act and of international agreements.

Concerning the development of new—that is, changed—micro-organisms for commercial use, such as in the development of biofuels, although not covered by the Plant Variety Rights Act and although such developments may become commercially valuable, that does not itself justify patentability and does not in the end undermine New Zealand’s commercial interests in using such organisms, because the value of them would be in New Zealand’s economic advantage, such as climate advantage, in producing and marketing them. So I do not accept that Mr Browning’s amendments would damage New Zealand’s commercial interests at all, as claimed by Labour. I think that Labour has got it somewhat wrong and should have another look at the situation. New Zealand First will therefore vote for Mr Browning’s amendment, but, whether it passes or not, we will also vote for Part 2.

I would just like to address some of the issues that have come up from Labour members in regard to plants and patents. Labour members seem to think that we will lose the advantages that we have had in the development of different kiwifruit and apples, and it is around the Plant Variety Rights Act. There is a distinct difference between a patent and the protections in the Plant Variety Rights Act, and those very plants that they are talking of are protected, regardless of my Supplementary Order Paper 124, because they are protected under a very strong Plant Variety Rights Act—that is not a patent. I will mention some of the limits or exemptions to a grant holder’s rights that allow for a more communal approach or reach into those plants that have got those protections. There is very good protection for those people who have bred or who have put that effort in to get those plants to fruition and then out into the market. Other persons are free to grow or use protected varieties for non-commercial purposes—so the community at large can benefit—but the commercial aspect is still protected for those who have developed them. Other persons are free to use the plants or parts of a protected variety for human consumption or for other non-propagating purposes. They are free to use a protected variety for plant breeding, although the repeated use of a protected variety for the commercial production of an F1 hybrid seed is not permitted without the authority of the rights holder. There are some pretty strong protections for the breeders of the plant varieties, but they do not need a patent, so I think it would be good if our colleagues in Labour have a rethink there, because the legislation certainly does not cut off that innovation and the commercial benefit for those who do that development.

But on a moral level, life is not an invention and should not be owned by any one person or corporation. Unfortunately, with a patent, just the little addition of a single gene can become the invention of someone who claims private ownership. So any animal, bacteria, cell, virus, or algae could be patented, and, as I say, we have already got plants covered elsewhere. I will run through a little bit of history where this has run amok internationally, with the patenting. I will use plants as an example, even though we are not patenting them or an extreme version of them. You can add that once you start to put these bacterial traits or viruses or whatever into plants, then you start to get into the world of patents. In 1994 the US Plant Variety Protection Act was amended, incentivising breeders by no longer allowing farmers to save seed without a licence from the owner of the seed variety, and, ultimately, they got into the area of patents. As a result, the farmers become bound to pay licence fees and royalties to the companies developing them, despite their prior universal right to save, plant, and exchange seed from their own harvests, requiring the skills and knowledge of their localities.

Modern biotech companies have claimed the rights over entire species and prevented access to their inventions by other scientists, but it was the fact that they were able to allow for patents in there that really locked things up. The advent of patenting genes was followed by an extremely successful float on the stock market of a company called Genentech, which raised huge money. Those companies then saw the potential of a new stream of income, and they encouraged development, which has led to the monopolisation of the agricultural seed market, which I mentioned earlier, and a significant collapse of traditional seed markets. There is plenty of research supporting that.

Monsanto actually got a patent on Roundup, the weed killer, and it was due to lapse after a period of time. So how was it going to manage and maintain that market? Well, it patented some crops, using what they call the “events”—an “event” is using some material from a micro-organism and putting it in. With these events, as such, being patented, and being able to express that through crops, Monsanto benefited because it had this Roundup ready technology tied into its genetically modified seeds. A technology fee was charged to farmers, and then they had to pay a per-acre royalty on patented seeds, and then they were also bound by an agreement that prevented them from saving the seed for planting in a subsequent year, instead buying new seeds every year. This followed lots and lots of litigation about farmers not using their genetically modified seeds. I have seen the same thing in Australia. I am over there shortly and will be looking at some other situations where things have gone bad from contamination.

But it is the actual micro-organisms that are involved in this; it is not the plants traditionally protected under the Plant Variety Rights Act. We are getting into all aspects of life and the genetic material being able to be patented. That went wrong because companies have become quite monopolistic in the way they have managed that in the United States and in some other countries. With the increased use of herbicides, plants have now got resistance, so now companies are patenting and doing new genetically modified varieties, right through to having varieties modified so they can spray 2,4-dichlorophenoxyacetic acid on them, as well. That is just so they can retain control of the food chain and be able to sell their herbicides and pesticides, which, although we were told would not increase in use, have, in fact, increased hugely—significantly—in use. So now there are new varieties coming through with other micro-organisms and other traits being developed. Note that we say “against the patenting of traits” for very, very good reason, because this allows that control of what has happened over there.

This is not about blocking innovation; it is about ensuring access for the community, for farmers, for researchers, and for medicine to all these traits of these parts of life: the genetic material, the microbes, algae, the cells of animals, the different parts of animals, which, with a little tweak, is something that they can own—something that is everybody’s. My colleague Metiria Turei talked before about the issues around the Māori advisory board and the group that would give recommendations, if asked by the Commissioner of Patents. That comes down to the same core—the same aspect. It comes right down to the basis of life and whether it should be patentable. I hope that colleagues and other parties will reconsider and support all of the Green Party Supplementary Order Papers, which will make this bill a really strong, fantastic, innovative bill. Thank you.

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 to LanzaTech 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 the Māori 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 the Māori advisory committee. It would advise the Commissioner of Patents in relation to patent applications for inventions involving traditional 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 to Māori 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 the Māori 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.

Tēnā koe, Mr Chairman. I thought I would pick up on the contributions from my colleague Clare Curran on the Māori advisory committee. I understand it comes in at Part 6 of this Patents Bill, but if my colleague could send me a copy of that Supplementary Order Paper 348, I would be most appreciative.

I want to make some comments on the advisory committee because there has been a Māori trade marks advisory group around for—I would say—close to 10 years now. It was quite an innovative thing at the time of its creation, and I understand that it has been doing some very good work in terms of providing advice on trademark applications. I do not want to be sort of stretching into Part 6, but because this Supplementary Order Paper on this part deals with the Māori advisory committee, I want to make a contribution.

The CHAIRPERSON (H V Ross Robertson): Well done.

Thank you to my colleague for the copy. I think we do need to look closely at the role of the advisory committee. It is commendable that it is included in the bill and that it follows from the advice of the royal commission, but in contrast with the Māori Trade Marks Advisory Committee, the power of appointment to the committee is in the hands of the commissioner. If you look at the Māori Trade Marks Advisory Committee, you see that the membership of that committee has hardly changed in over 10 years, and you have a lot of—what should I call them—intellectual-type people, mainly Auckland-based people, and maybe some Wellington bureaucratic - type people who have been members of that committee for a very, very long time. I would not want to see the composition of the patents advisory committee drawn from the same type of people.

I come from the South Island, and we are very, very aware of our Māori interests in our flora and fauna and our natural landscape. It is disappointing to see that there is very little South Island input into, say, the Māori Trade Marks Advisory Committee, and that has been the case for close to 10 years. Although it is not specified in the bill, it would be advisable, I believe, to have geographically broad iwi representation and consideration, but, more fundamentally, to have expertise in those matters when the commissioner actually comes to selecting people to sit on these advisory committees.

I have just a further remark: we do want to make sure that they are the best people for the job. This is highly specialised and also culturally significant expertise that is required, but I do not think that it is helpful to have advisory committee members appointed for such long durations of time—in excess of a decade or whatever. They just roll them over and roll them over. I think there needs to be some consideration of their performance and giving others a go. Basically, you know, Māoridom is made up of many iwi and many hapū within those iwi, and there is a lot of expertise right around the country—traditional expertise on tikanga Māori and mātauranga Māori. I think it is fair that we give a broad representation and regular advice, or expertise if there is expertise—and I know there is expertise on many, many different maraes and in whānau and hapū right around the country—so that we freshen up the composition of these bodies with the expertise that is there right around the countryside.

Sure, I guess you have to have a mix, a composition, on any type of board or advisory committee, but comparing it with the Māori Trade Marks Advisory Committee, I see names on that committee that have been there for close on 10 years. Being from the South Island, I do not know who they are. Many of these people are just academics from Auckland, so I do not want to see those sorts of same old, same old institutionalised people put on to these advisory committees representing all of Māoridom. They are defending our pā. They are the ones who will be defending our pā. They are advising the commissioner, and so we need to get a broad mix of our mātauranga, of our tohunga, you could say, of our traditional expertise incorporated into that committee.

I know that there is no size limit given to the committee, but I would certainly hope that there would be a fair representation of the geographically diverse iwi from the North Island and the South Island, and that their tikanga Māori expertise would be incorporated into the full composition of that advisory committee. But I will give further remarks on this matter when we get to Part 6. I just wanted to pick up on that, given that I heard that the member Metiria Turei had mentioned the advisory committee in Supplementary Order Paper 348. Kia ora.

Tēnā koutou katoa. I would like to take just a short call on a similar point to that of the previous speaker, Rino Tirikatene, and give some background as to why we put up Supplementary Order Paper 348. We did that because we actually went outside the walls of this Whare and talked to some people who had been involved in these issues for many years. What they said was that a Māori advisory committee is very 1980s as a concept. We are working towards a different world where we actually honour the Treaty in our legislative programme, and when we want to consult on vital issues like this we actually create entities that reflect the Treaty, and this Patents Bill is not it. So although we support the Patents Bill, we raised this Supplementary Order Paper in the hope that the House would be ready to move towards more of a co-governance approach, as we do with Treaty legislation. This is not co-governance. This is actually about allowing two different world views, where one gets to make all the calls.

Receiving advice has got nothing to do with following advice. In fact, if you look at the law, it does not require the Commissioner of Patents to take the advice. It requires the commissioner to hear the advice but not to take it, and it allows the commissioner to appoint. That is why we have suggested in the Supplementary Order Paper that it should be the Minister of Commerce rather than the commissioner who does this, and that the people on the committee should have power over their advice, not on all matters but on critical matters to do with taonga Māori and the mātauranga Māori world view, and that advice would be binding. It is very interesting that when we talk about this process we want people to be able to be heard but not listened to. We want them to be able to speak, but we do not want to have to abide by what they say. So one world view is fine, it is going to dominate, and it is going to be accepted, but the other world view will not be. It might be if it is lucky and the commissioner decides that they will listen to it.

This is very old-school, and it is very inappropriate in the 21st century in terms of both the findings of Wai 262 and the people who put up Wai 262. We spoke to people like Aroha Mead, who is an internationally recognised expert on intellectual property issues, and other people from around the motu who actually had huge concerns about what this bill entrenches in this bit—not the whole bill, which has got many, many merits. It takes us right back in time to the good old era when the commissioner could tell the tangata whenua: “Thanks for the advice, but we’ve decided to continue with our approach anyway.” Let us hope that that will not happen, because what we hear is that the Māori Trade Marks Advisory Committee in many ways has actually worked pretty respectfully with the tangata whenua advice, but we cannot assume that that will happen. When we write law, we should do the right thing, and that law should be robust.

That is why we are also supporting Steffan Browning’s Supplementary Order Paper 124. There is something very fundamental about what he has put forward in the Committee today—something very fundamental about what it is to be alive, what it is to be patented, and what it is to be protected by the law. What Steffan has done will also have the support of many of our colleagues in the tangata whenua world whom we have spoken to about this. They support Steffan’s Supplementary Order Paper as well because, basically, it is talking about recognising that life cannot be commodified, and therefore the Supplementary Order Paper should be supported. Life cannot be commodified, and Te Tiriti should not be watered down to be about advice. So support our Supplementary Order Papers. There is the opportunity to do so on all sides of the House so that we actually get both these issues into what is a piece of legislation that we are encouraged by and that we believe the Minister of Commerce has made great progress on.

There is no excuse in the 21st century for treating Māori advice as token. There is always a risk when the commissioner has all the power, as they do. I support the member Rino Tirikatene in saying that often these committees become entrenched. They become about certain people receiving a position that they become comfortable in, and others are not heard. It is very important that we take this seriously and do not stay in the old mind-set of consultation.

As my dad once said—[Bell rung] I am about to finish, but I do want to say one more thing about what my dad always said about consultation: it is a cross between a con and an insult. I think that is an important point when the law does not require us to act around the responsibilities of article 2 in Te Tiriti o Waitangi. Kia ora tātou katoa.

The question was put that the amendments set out on Supplementary Order Paper 120 in the name of the Hon Craig Foss to Part 2 be agreed to.