Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill

I move, That the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill be now read a second time. The bill amends the Patents Act 2013 and includes a measure to build on Australia and New Zealand’s closer economic relations. The bill’s key purpose is to provide a modern occupational framework for regulating patent attorneys, and it achieves this by implementing a trans-Tasman licensing regime for Australian and New Zealand patent attorneys.

I would like to begin by thanking the Commerce Committee for its consideration of this bill, ably chaired by Melissa Lee. The committee’s report includes several sensible recommendations for amendments to the bill. I want to also acknowledge the submissions from the public and, in particular, from the patent attorney professions, whose submissions on the implementation of the single patent application process and the single examination process between IP Australia and the Intellectual Property Office of New Zealand assisted the committee in recommending the deletion of clause 5.

When the single patent application and single examination process were first considered back in 2009, they were seen as having the potential to deliver benefits to innovative businesses by protecting their inventions through the filing of patent applications in Australia and New Zealand. It is now clear that, as a result of the passage of time and the development of new international initiatives, implementation of the single patent application and examination processes is unlikely to be used by New Zealand business and, even if they were, would not deliver a net benefit. With this in mind, I approved the committee’s recommendation to remove clause 5 from the bill.

The chief purpose of the bill is to replace the 60-year-old and outdated regulatory regime for patent attorneys, with a modern licensing regime. Patent attorneys are a small profession providing specialist advice to businesses on the protection and exploitation of intellectual property rights. The current regulation of patent attorneys in the Patents Act 2013 is long overdue for an overhaul, as it falls well short of modern standards for occupational regulation. For example, currently there are no legislative requirements for patent attorneys to behave ethically, to provide minimum standards of service, and to keep their knowledge of international property law and practice up to date. There is no accessible means for redress for aggrieved clients of patent attorneys to pursue if their patent attorney has misbehaved. The qualifications regime, which requires a person to sit and pass a number of examinations, is outdated, inaccessible, and does not meet modern educational outcomes consistent with the New Zealand Qualifications Framework as set out under the Education Act 1989.

Because licensing regimes are expensive to implement and administer, our challenge in creating a modern licensing regime for the small patent attorney profession is to make it cost-effective. The bill achieves this by implementing, in Part 2 of the bill, a trans-Tasman licensing regime for Australia and New Zealand patent attorneys—

💬 Hon Clayton Cosgrove: Which you’ve reversed. You’ve reversed it.

No, that is the single economic market; that is a different part of the bill—which is largely based upon the modern licensing regime in Australia. The trans-Tasman licensing regime is cost-effective because it takes advantage of the economies of scale that can be achieved by merging two similar licensing regimes into a single regime, and recognises that the majority of New Zealand patent attorneys are already registered in Australia and, therefore, are familiar and already complying with the Australian licensing regime.

The trans-Tasman licensing regime will provide a single register for patent attorneys; a single qualifications regime focused on Australian and New Zealand intellectual property law and practices; a Trans-Tasman IP Attorneys Board, comprised of Australian and New Zealand members to oversee the qualification regime, maintain a trans-Tasman code of conduct, and investigate complaints about misconduct and unethical behaviour of patent attorneys; and, finally, a Trans-Tasman IP Attorneys Disciplinary Tribunal to determine complaints about the behaviour of patent attorneys and, where appropriate, to suspend or cancel the registration of patent attorneys who misbehave.

I do also want to take this opportunity to take a moment to address some of the concerns stakeholders expressed during the select committee process. The first obvious concern was in relation to clause 5—the inclusion of the single application process and the single examination process—which, as I have already touched on, we have done away with.

Another concern was in respect of the impact of the trans-Tasman licensing regime for patent attorneys on competition between Australian and New Zealand patent attorneys. The trans-Tasman licensing regime is indeed intended to facilitate more effective competition between patent attorneys, and to make it easier for New Zealand patent attorneys to expand their services into the larger and more lucrative Australian market, and I back the New Zealanders to do well.

Stakeholders expressed worry about an increase in costs for New Zealanders to qualify as patent attorneys. There may be some additional costs, but many patent attorney stakeholders accept that the current regime is outdated and no longer fit for purpose. So implementing the trans-Tasman licensing regime is the most cost-effective means to modernise the regulation of patent attorney services in New Zealand.

Lastly, the availability of accredited courses of study in New Zealand to qualify for registration under the new trans-Tasman licensing regime was another issue that was raised. If no courses are available in New Zealand, the concern is that students may be forced to take more expensive Australian-accredited courses, but Victoria University’s law school is currently developing suitable courses of study for accreditation, and expects to be able to start providing such courses from the beginning of next year, coinciding with the commencement of the new licensing regime. It is also important to ensure that the qualifications regime for patent attorneys is transparent and meets—

💬 Mr DEPUTY SPEAKER: Oh, you said “finally”.

Pardon? [Interruption]—modern educational standards. Mr Deputy Speaker, this is an important piece of legislation. This is achieved by requiring Australian and New Zealand students wanting to qualify as patent attorneys—

💬 Hon Clayton Cosgrove: I raise a point of order, Mr Speaker. With respect, I think the Minister is making some salient points, trying to illustrate how a Government had a position and then reversed it, and then reversed it again. I think it is noteworthy in the House.

💬 Mr DEPUTY SPEAKER: That is not a point of order.

May I continue? We are a Government that listens. [Interruption]—

💬 Mr DEPUTY SPEAKER: Do not start.

It is also important to ensure that the qualifications regime for patent attorneys is transparent and meets modern educational standards. This is achieved by requiring Australian and New Zealand students wanting to qualify as patent attorneys to take accredited courses of study offered by universities and other recognised education establishments. This approach is no different to students wanting to qualify as doctors, chartered accountants, or architects.

Part 1 of the bill implements a minor change to the grounds upon which a person may oppose the grant of a patent. As enacted, the Patents Act 2013 allows a grant of a patent to be opposed on the grounds that an accepted patent application claims patent protection for more than one invention—that is, the application has a “lack of unity of invention”. This is not a ground of opposition under the Patents Act 1953, and there was no policy intention to introduce this as a ground of opposition in the Patents Act 2013. If the ground remains, patent applications may be unfairly disadvantaged by losing the patent rights to other inventions claimed in a patent application. The Commerce Committee has recommended that the amendment contained in this bill, which prevents a person opposing a grant of a patent on the ground that it claims more than one invention, be applied retrospectively back to the date that the Patents Act 2013 entered into force, namely 13 September 2014.

I do support the committee’s recommendation on this matter, and I do commend this bill to the House.

I have to say two things before I begin. I want to commend the chair of the Commerce Committee for her diligence in trying to transact this piece of legislation, given that it was a Government bill that came to the committee and then was reversed halfway through the committee.

The second thing that I have got to say is that I actually feel sorry for the Minister, and I say this in a non-partisan way. It is rare in this House that one is critical of officials, but I have to say—and I do not set up the chair of the Commerce Committee in doing this—I suspect the chair of the Commerce Committee agrees with me, that the analysis behind this bill was totally flawed. We will support it. It is actually a reversal of the Government’s primary proposition. In the 58 seconds that I have—and we will return to this another day—I have got to say that when we asked officials for the costings, we were greeted with the following explanation, which I wrote down: “Our analysis was back of the envelope, our best guess.” I have got to say, I responded to the officials by saying that I feel sorry for the Minister if that is the depth of the analysis that has been put up to a Minister from officials.

So I have got to say to the Minister, this is a debacle. We will support it. It has been reconstructed through the select committee process. My biggest criticism—in the 16 seconds I have left—is that the innovative community that relies on this sort of legislation was never consulted. It was never consulted. The big end of town was, the patent attorneys said “Life will end as we know it.”, but the innovative community was never consulted—

It is tragic to interrupt the member. I am afraid the time has come for me to leave the Chair. I thank members for their contributions this evening, their humour, and their goodwill. The House will resume at 2 p.m. tomorrow. Nō reira, tēnā koutou, tēnā koutou, tēnā koutou katoa.

The House adjourned at 10 p.m.