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 third time. The enactment of this bill will implement a modern licensing regime for patent attorneys. Patent attorneys are a key component of New Zealand’s innovation framework. They are a small group of regulated practitioners who assist innovative businesses to maximise returns from inventions through the use of intellectual property (IP) rights.

In our increasingly knowledge-driven economy, intellectual property is of growing importance to New Zealand businesses. Every year around 30,000 trademark, patent design, and plant variety rights applications are made by individuals and business to our intellectual property offices. There can be high costs for breaching another’s intellectual property right and for not adequately protecting the investment made in developing new products and services. Having a licensing regime for patent attorneys is the most effective means to mitigate the financial harm to businesses that can be caused by advice given by unskilled persons.

Patent attorneys are currently regulated under a licensing regime that was designed and implemented to meet the needs of businesses in the early 1950s. As such, it lacks many of the common features found in the modern licensing regime for a regulated occupation—those that allow businesses to have confidence in the quality and standard of service provided by patent attorneys. For example, the current registration regime neither requires patent attorneys to adhere to a code of conduct nor provides an accessible disciplinary regime to address unsatisfactory conduct by patent attorneys.

Australia has a modern licensing regime for patent attorneys. The majority of New Zealand patent attorneys have taken advantage of the trans-Tasman mutual recognition arrangement to register and practise in Australia, and vice versa. It is, therefore, sensible to look to Australia’s regime as a basis for implementing a modern licensing regime in New Zealand. However, this bill goes one step further than merely replicating Australia’s licensing regime. It implements a single trans-Tasman licensing regime for Australia and New Zealand patent attorneys, based upon Australia’s modern regime.

Implementing the trans-Tasman licensing regime is the most cost-effective means for modernising the regulation of patent attorneys in New Zealand. It allows economies of scale to be achieved in the institutional arrangements for regulating patent attorneys but it will also substantially reduce the cost for patent attorneys to practise in both Australia and New Zealand.

It is worth recounting the history of the bill. In August 2009 Prime Ministers Key and Rudd issued a joint statement of intent in which outcomes for the single economic market agenda between Australia and New Zealand were agreed. The goal of the agenda is to improve the productivity and innovation of Australian and New Zealand businesses by deepening the level of economic integration between the two countries and providing a trans-Tasman market. The implementation of the trans-Tasman licensing regime for patent attorneys is one of the key outcomes of the 2009 single economic market agenda.

The trans-Tasman licensing regime has been designed with the objective of encouraging and facilitating effective competition in the trans-Tasman market for patent attorneys’ services. Specifically, it will make it easier for New Zealand patent attorneys to offer their services in the larger, more lucrative Australian market. It is a small but significant step to further economic integration between Australia and New Zealand in the area of professional services.

This will be the first occupational group to be integrated under a single trans-Tasman licensing regime. The licensing regime comprises one register for all patent attorneys; a qualification regime covering both Australia and New Zealand intellectual property law and practice; a single code of conduct for New Zealand and Australian patent attorneys; a Trans-Tasman IP Attorneys Board, comprising Australian and New Zealand members, to administer the regulatory and disciplinary regime for patent attorneys; and a Trans-Tasman IP Attorneys Disciplinary Tribunal to determine complaints about the conduct of patent attorneys and, where appropriate, to sanction misconduct.

The bill implements the trans-Tasman licensing regime in the manner set out in the arrangement between the Government of Australia and the Government of New Zealand relating to trans-Tasman regulation of patent attorneys. Under the arrangement, the Australian legislation is required to set out the key features of the regime. This bill before the House implements New Zealand’s requirements to do the same.

Before finishing, I would like to correct a misunderstanding in some speeches in earlier readings, relating to the single patent application process (SAP) and the single patent examination process (SEP). The bill was brought to the House including the implementation of the single patent application process and single examination process between IP Australia and the Intellectual Property Office of New Zealand. When the single patent application and single examination process was first considered back in 2009, they were seen as having potential to deliver benefits to innovative businesses by protecting their inventions through having the filing of patent applications in Australia and New Zealand combined.

As a result of the passage of time and the development of new international initiatives, it became clear that the implementation of the SAP and SEP, as they are sometimes referred to, is unlikely to be used by New Zealand businesses, and, even if they were, they would not deliver a net benefit. In particular, in May this year, changes to the World Intellectual Property Organization’s ePCT system for filing patent applications and the expansion of work-sharing arrangements between patent offices were confirmed as proceeding. These will deliver similar benefits to the SAP and SEP arrangements at a much reduced cost. With this in mind, I approve of the Commerce Committee’s recommendation to remove clause 5 from the bill. It was a sensible response to changed circumstances. The substance of the bill, the introduction of a trans-Tasman licensing regime, remains in place.

I do want to finish by thanking the Australian Government for its cooperation in developing and implementing the trans-Tasman licensing regime. I commend this bill to the House.

If I may, just before I begin on this piece of legislation, could I, as others in this House have done, pass on, firstly, my condolences to those people who have lost loved ones in the recent quakes. As a Canterbury MP, and a number of people on both sides of this House hail from that province—and clearly your good self, Mr Speaker—we can say with some authority that we know exactly what these folks are going through. Could I also commend those people in the various agencies, who are responding as diligently and professionally as they can.

On to a lighter note, in respect of this bill, I have to say that I congratulate Minister Paul Goldsmith on the best attempt at an alibi. He is a very loyal guy, this Minister, in terms of protecting his officials and sticking by them like araldite, and that speech was one of the best alibis I have heard for a botch-up.

I have said in past speeches that Labour will support this piece of legislation. We support any protection of intellectual property and other protections in respect of the innovative communities to protect those ideas and products and services that are developed by our innovative community. But can I say—and I am also on record, quite rarely, saying this—that I do feel sorry for this Minister, given the level of advice that was tendered to him and to the Commerce Committee by officials. I have also said that I do not often criticise public servants, but as one who sat through weeks of this bill, I have to say—and the Minister alluded to many of the changes that have occurred internationally—that many excuses were put forward to reverse the Government’s original proposal, which was to have an amalgamated process, if you will, to implement a single patent application process in respect of New Zealand and Australia.

Labour originally saw that proposal put forward by the Government and we liked it. We thought it would work, we thought it was in line with other industries—the legal profession and banking—where there has been amalgamation. Our view was that, presumably, the Government had put this forward in order to provide benefits to the innovative communities; not simply the patent attorneys. I note the Minister referenced the patent attorneys many, many times in his speech, but tended not to reference those who I actually think are more important than the patent attorneys, who take a fee for their service. They are those whom patent attorneys serve—that is, innovative clients and innovators and those who are coming up with these ideas and new products and services.

So we looked at this originally and we thought: “Well, this is a pretty good piece of legislation. The Government’s obviously thought this out. We support the original proposition.” I have to say, though, we were quite astounded as a committee—and I will not speak for the chair, Melissa Lee, who I think, as I have said in past speeches, did an admirable job in allowing the committee as a whole to tease out the detail around this piece of legislation. We were quite astounded when it was reported to us by officials that they had recommended a complete reversal. However, in good faith we looked at this and we asked about things like pre-consultation: who had officials consulted with, and had they consulted with the innovators? There was a lot of, as I say, talk about the patent attorneys—great souls that they are—and very little, if any, consultation had actually occurred with the innovative community, apart from one or two submitters. One was Fisher & Paykel, and there was another large company, but very little, if any, consultation, around either the first proposition or its reversal and replacement, had occurred with the innovative communities as a whole.

At this point members of our committee actually went out and did some of that consultation. We simply asked those officials to justify the change. In the report you will see—and the Minister has alluded to it—that they talked about the lack of benefits to either business or patent attorneys. They talked about the increased administrative cost to businesses. They talk about other significant costs. But none of that was ever quantified and none of that information was provided to the committee. In fact, I have got to say it was one of the worst presentations by officials I have witnessed in my 17 years in this Parliament. When officials come before you and you ask them to quantify the cost benefit, and they give a figure and you ask how they got to it and they talk about “their best guess” or “on the back of an envelope”—I remember remarking to one of the officials: “Well, I do feel sorry for the Minister if that is the sort of gobbledegook that was served up to him.”—is it any wonder that the Government, as well as the committee, had some difficulty in working out what was actually the best way to go?

We have a pretty good Public Service. I think we have a world-class Public Service, but we were told by certain officials, basically, “Trust us, we’re the experts, and trust the patent attorneys”, and that was it. Our concern, of course, was to test whether the replacement proposition would actually work for the constituency for whom it is put forward in this House to serve. I have got to say, after weeks and weeks of actually being given contradictory information from time to time by officials, it was a welcome fact that the Minister’s own adviser came to a private hearing of the committee—which we on our side welcomed—to see first-hand the lack of evidence and analysis that was being served up to us to report back to the person’s Minister so that we could get this right.

There is no politics in this piece of legislation—none. If there was, I would be attacking the Minister for incompetence, not the officials. I am actually very disappointed with the advice that the officials got. I hope the Minister has taken the chief executive of that particular department to task around this, because to bring a piece of legislation to a committee without basic analysis being done—presumably, officials thought: “Er—this committee is uninterested. Just rubber-stamp it and bang it through.” Well, actually, we were concerned because we wanted—I think genuinely on both sides of the House—to get it right.

The lack of consultation, or the consultation that was limited to simply one group—that is, the patent attorneys, and they are very important in the scheme of things. They make this work. But the lack of actually going out and talking to the innovative communities en masse, rather than just one or two, who came up and say “We don’t like it, therefore, we should reverse it.”, I think was pretty appalling, and the committee was not well served by the advice it had. In fact, I have to say that all members of the committee took quite a bit of time to work through the bill—not on a political basis. I think we basically buried the hatchet, put it aside, and said “Hey, we’ve got to get this right.”, to ensure that we could convince ourselves that this was the most appropriate course of action.

The Labour Party has put in a minority view, and I am quite happy to make the point—well, I am not happy to make the point, but I do note that even those members on my side of the fence are rather reticent about whether we made the correct decision in respect of this bill. We hope we did, and we will support the bill, but I say this. It was extremely difficult, I think, for committee members—and, I suspect, the Minister, loyal soul that he is to his officials—to say with any great gusto or confidence that this bill will do exactly what the Government’s intent is and that we support the intent of it.

So we will support it. We seek simply to ensure that the provisions within it will serve as best they can the innovative communities, entrepreneurs, and inventors who seek to protect their products and services from nefarious others, but I would make a plea to the Minister. I think, if he has not already, he needs to go and have a rather stern chat with his department so that this sort of stuff does not happen again. If there had been decent pre-consultation, some of these proposals would not have seen the light of day. They would not have got to a Minister’s desk, they would not have got past the Minister’s adviser or his private secretary’s secondment—they would not have got anywhere near a ministerial desk. Instead, that department would have served up quality provisions that the Minister would have confidence in and that a select committee would have processed, I think, very efficiently upon good advice from officials.

So I think there is a learning that can take place from this. But I say, for the record—as I have said before—I think we have a world-class Public Service, but we were not well served on a very, very important piece of legislation like this.

I am sure there are people who are listening at home—you know, it will not turn the lights on at home but this sort of legislation is vitally important if we are trying to promote innovation within our commercial sector in our country. It is very expensive and very difficult for smaller entrepreneurs and innovators to get patent protection for their services. Our position, as it always has been, is that if we can provide support legislation that makes it cheaper and more efficient for those innovators, that is something we should all support across the House.

I have to say that a very simple proposition with unanimity was made extremely difficult because of lack of foresight, and because of lack of basic analysis and work done that should have been done—particularly pre-consultation and post-consultation, when the legislative provisions were changed by that Government department. That being said, we support the bill.

Thank you for the opportunity to speak briefly on the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill, the main purpose of which is to implement a single trans-Tasman registration regime for Australian and New Zealand patent attorneys. It is great that today we are able to have the third reading and support the passage of the bill through this House for the final time. In that regard, I would like to thank the member who just took his seat, Clayton Cosgrove, for the constructive way that he and the Opposition members have worked within the Commerce Committee to produce good work, I think, through some difficult conversations that we have had to have at times.

It is important to remember that patent attorneys are a small but important specialist profession with about 1,000 practitioners who advise businesses on the protection and exploitation of intellectual property rights and who, as a result, need effective legislation to cater for their industry’s needs. Through our discussions in the Commerce Committee and in this House, we agreed that there was a need to replace the 60-year-old, outdated regulatory regime currently in place for patent attorneys, and to help increase competition and innovation between Australian and New Zealand businesses. It is also important to remember that 95 percent of the patent applications filed in New Zealand will have a corresponding application across the Tasman. This is unnecessary bureaucracy that can be avoided through this law change.

The bill helps the market be more competitive, with reduced costs to help business, inventors and innovators having more time and recourse towards their products and services, as well as trimming the red tape that can stifle progress. The bill does this with two main amendments to the Patents Act of 2013. It introduces a joint registration regime with Australia for patent attorneys to help spread opportunities to engage in their practice between our two nations and to enhance the conduct and services across the industry. Considering the fact that Australia has a much bigger economy than New Zealand, I can see only benefits for New Zealand patent attorneys. The second amendment is to explicitly remove opposition on the grounds of lack of unity of invention as a means to contest a patent during the pre-grant process. As previously discussed in this House, this possible option was unintentionally introduced in the 2013 legislation and needs to be removed to clarify the law for the patent attorneys across the Tasman and for consumers at large.

Also, under the provisions as we have debated them, a new licensing regime will comprise a register for all patent attorneys and a qualifications regime across Australian intellectual property law and practices, as well as a code of conduct and disciplinary regime to ensure that all those relying on the trans-Tasman system can hold misconduct to account.

I would like to also thank all of those people who have participated during the process in which this bill has gone through the select committee, and the debates in the House as well—the organisations, the businesses, and the individuals who have actually submitted their views on the bill. To hear people’s views and thoughts is always appreciated. Those views do, in fact, matter and actually often direct and guide the select committees, as well. I think they were very helpful. Those submissions and the excellent work of the Commerce Committee secretariat and other parties have contributed to the bill, which will work well for our innovative patents and inventions industry. As I said earlier, I would like to thank all of the members of the Commerce Committee, who have worked very hard to get this bill to the third reading and complete the process. Thank you. I commend the bill to the House.

This bill is an object lesson in the importance of good policy development. We as a select committee—and Melissa Lee was the Commerce Committee chair—had the unenviable task with this legislation of shaping it into something that vaguely did something sensible for New Zealand.

It was, as my colleague the Hon Clayton Cosgrove has pointed out, a very unusual situation for us to be in. The essence of the legislation was that it sought, in its original form, to completely unify the qualifications of the patent attorneys across the Tasman—the qualifications, the registration regime, and so on. During the course of the select committee business it became apparent that the patent attorneys were not at all on board with this and that they had not been fully or effectively consulted. In fact, if they had been consulted, it was certainly in no systematic way, and their ire was apparent very quickly to members of the committee, who I think were probably all individually contacted by the patent attorneys and their representatives.

What we learnt, of course, as we unpacked the process of the bill—how it had come to be what it was—was the fact that this bill really was trying to give effect to a press announcement made between John Key and Kevin Rudd after they had met some time ago. They had nothing significant to announce and decided—I think, from memory, while they were travelling along in their kayaks—that they should announce something by way of joint progress on unification of regulation in the trans-Tasman relationship, and announced that they would unify the patent attorney regime. That promise, unfortunately, it seems was made in the heat of a warm friendship moment. It had not been tested for its clarity of thought and ease of implementation.

Unfortunately—and I think that this does rest with the Minister of Commerce and Consumer Affairs. I am a little more critical of the Minister than my colleague the Hon Clayton Cosgrove was. I do think that the Minister, in giving effect to the Prime Minister’s promises, still has a responsibility to ensure that they can be implemented in an effective way and that the promise makes sense. I think that, as politicians, we do have a role in policy development. It is important that we test that with all of those who are affected by the regime, and who knows? Actually—and I have not said this in previous parts of the debate—this may have been a very sensible suggestion by the Prime Minister. We will never know because it was not properly tested. The calculations were not done as to whether it would have brought benefits, what effect it would have had on the patent attorneys regime, whether the incentives that were being set up would have led to the patent attorneys all shifting offshore and moving away from the innovative businesses in New Zealand, or whether, in fact, the New Zealand patent attorneys would have stood to benefit from this regime, because we tend to provide services in an innovative and low-cost way.

Where we came to was that, in fact, the officials did not know whether it would benefit the regime here. They had been told, subsequent to the announcement, that the patent attorneys certainly were not happy about it and that the patent attorneys were not clear that this would be of benefit to New Zealand. So an enormous move backwards was initiated. The legislation was gutted and the patent attorneys were assured that the existing arrangements would stay in place. So here we find ourselves today, progressing a bill that has, basically, been gutted. We find ourselves putting legislation through the House that fails to achieve what it originally set out to achieve. It fails to do that primarily because the officials had not done the calculations that could give assurance to the committee that was a sensible thing to do.

Mr Cosgrove was very critical of the officials involved. I think they probably cannot completely escape blame, but I also think the Minister must take responsibility for the development of the policy. It is the Minister’s job after all. That is why he is here, and that is why he collects the salary. He is here to balance up the public interest elements of the legislation with the sensible policy elements, as the advisers put them to him. He needs to be responsible for testing what the officials put to him. He needs to be sure that the legislation that he is putting forward in public is robust—not only that it kowtows to the Prime Minister’s wishes but that it really is a sensible thing to do. We will never know, because it was shot dead in the water.

As I have just said—and have not previously really said it in this way—the Prime Minister might have been right. The Prime Minister might have been right, but the Prime Minister’s idea has gone down in flames because the Minister Paul Goldsmith did not instruct his officials and did not test whether his officials had sufficiently tested the proposition to get it through to the select committee in a robust fashion. So when the bill arrived in the select committee and we examined it and found it wanting, when we had the concerns of the patent attorney lobby brought to us and when we sought further assurances and could not get them, all of us on the select committee became very nervous about this legislation as we tried to balance up those different aspects. We also became aware, of course—as our officials spoke to them—that the Australians were finding the same ground rocky.

It is a disappointing thing to be in this House supporting a bill that does very little and that probably is a missed opportunity more than anything else. We could have, you know, been here passing something through that was really worthwhile. It could be that if this proposal had been robustly examined, it would have been found to be the right thing to do. We do not know, and we probably will not know, until a future Government re-examines the situation, looks at the interests of innovators to see whether they are advanced by changes that unify the regimes, looks at the way patent attorneys are educated and the way in which their qualifications are tested and recognised, and decides what the steps forward should be.

There is no doubt, overall, that we do want to harmonise, where possible, the relationships between the countries but also make sure that New Zealand’s interests are protected as we harmonise between Australia and New Zealand. If we can lower regulatory barriers and if we can make it easier to do business without red tape, then I think, certainly, members across the House would welcome that. Inadequate policy processes do not facilitate that kind of change, and, unfortunately, we find ourselves here today passing a bill that will do very little for the interests of innovators in New Zealand.

That speaks to the broader problem. This Government has the aim of increasing exports, as a percentage of GDP, to 40 percent of New Zealand’s GDP. That, in itself, is laudable. The Minister, notably, has been very reluctant to put any intermediate targets in place—and maybe politically that is wise, but I think that from a public policy perspective it is very unfortunate. We see now that this Government is further behind than it was when it took office. Exports as a percentage of GDP are now below 30 percent—they are below 30 percent. New Zealand must pay its way in the world. Having an aim of 40 percent of GDP being exports is laudable, but when we are now below 30 percent, and dropping, it is a shame for this country, and does not speak well to the security of our economic future.

We need a broad-based economy. We need a Government that is proactive in making sure regulatory barriers are lowered and in making sure that we have a good environment for business, and, unfortunately, we have Ministers like Minister Goldsmith proceeding with things that have not been thought through fully. I give credit to the chair of the Commerce Committee, Melissa Lee, for her proactivity in ensuring that we had a good discussion around these issues and ensuring that we did test them, and for having the courage to support a challenge to the proposal that had come forward. I give credit to the other members of the select committee, who participated vigorously in trying to rectify a situation presented to us by Minister Goldsmith, and it was doing the Prime Minister’s wishes no justice.

Firstly, I would like to join with other members of the House in offering condolences to those people who have lost friends and family members in those dreadful quakes in the early hours of yesterday morning, and also to commend not only the resilience but also the good nature of those people who opened their homes and their hearts to neighbours and to visitors to New Zealand in need. It is a great disaster, but it also does bring out the very, very best in people.

I do rise in support of the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill in this, its third reading. The bill has always had one fundamental objective, and that is about creating a trans-Tasman patent attorney registration system, along with some associated code of conduct and disciplinary matters. It also had—and retains—an element of wanting to remove an error from the earlier Patents Act that was about opposition on the grounds of lack of unity. It also has a couple of other matters that, in the scheme of the bill as a whole, are minor.

The single application process and the single examination process were introduced as ideas that might help to speed the application for and examination of patents across Australia and New Zealand. The reality is that, given the time from when the idea was first put forward to now, when this may be enacted, much has changed. Much has changed in the area of technology and other systems available to the rest of the world, as well as to New Zealand and Australia, which yields those processes no longer as beneficial as they may have looked a number of years ago. Through the select committee process, it was determined that it was appropriate that they be removed. That does not change the heart of the bill. The heart of the bill was always around the joint registration process, which would see a single definition of services for patent attorneys across Australia and New Zealand, a trans-Tasman governance body, a single disciplinary regime and code of conduct, and a single disciplinary tribunal.

That was the heart of the bill when it was introduced, and it remains the heart of the bill as we now debate it in its third reading and, hopefully—hearing of the support from across the House—through to its enactment. In that respect, nothing has changed. We will achieve the regulation of the professional body that was sought. There will be a new set of regulations, which I think will offer benefits to patent attorneys across both New Zealand and Australia. It will certainly help, I believe, our patent attorneys to be more competitive, not only in our own market but also certainly in the Australian market. I am very pleased that, along with that, we are removing opposition on the grounds of lack of unity of invention. I think it was an oversight in the previous bill, and it is good to see it removed now. I have nothing further to add but to commend this bill to the House.

Tēnā koe, Mr Speaker. I would also like to echo the condolences and support for those affected by the earthquake. At such times, communities come together and we see the amazing resilience and strength at a community level that really makes this country special. So our thoughts are with those who are having to put their lives back together again after the earthquake.

I would like to make some comments on this bill, the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill. I echo many of the previous speakers, who have been highly critical of what the passage of this bill has represented. The genesis of this bill came from a high-level political announcement from Prime Minister John Key and the then Australian Prime Minister Kevin Rudd in August 2009. Unfortunately, political announcements, and particularly those driven by a particular ideological position, do not necessarily make for good legislation.

I think that what we have found in this case is that there has been a major political problem. What started out as being an attempt to deepen the level of economic integration between Australia and New Zealand has ended up as legislation that has been poorly translated through the political process into a bill, and I would note that it was agreed to by Cabinet in November 2011.

We see the process as having been deeply flawed, particularly the single patent application process and the single patent examination process, which were subsequently withdrawn from this bill. We see the remaining elements as being, firstly, a retrospective amendment to section 92 of the Patents Act, and we do not regard retrospective amendments as being good legal practice and good parliamentary practice. We reluctantly agreed to this basic correction of an error in the previous legislation. The final element that is remaining is the trans-Tasman joint registration regime. We have considerable misgivings about this part of the bill, but we have rather reluctantly decided to accept the suggestion of the Commerce Committee and support the legislation.

We echo the concern of previous speakers about the poor process used in this legislation. Submitters uniformly complained about not having been consulted. We regard that as being more than an oversight. It indicates a failing to undertake properly the work that is required on this bill. We see that submitters uniformly opposed the proposals put forward. I think there is a wider implication here that other professions in New Zealand should be looking anxiously at this politically motivated process. I think that as parliamentarians we need to remember that part of our role is to defend New Zealand’s interests when there are costs that fall on New Zealand professions from harmonisation proposals.

We consider that the remaining legislation would generate some potential benefits in terms of joint licensing, depending on how the legislation is implemented. We support the submitters who emphasised that there could be flanking measures that help—so, for example, locally responsive governance, so that New Zealand patent attorneys are not disadvantaged by additional travel costs, which was a point raised by many submitters, and not disadvantaged by rules that are not appropriate for the New Zealand market.

We also think there are other measures to support this legislation that should be put in place, such as a New Zealand trademark attorney regime in parallel with the Australian trademark attorney regime. New Zealand does not have one at present, and it would go a long way to making sure that this legislation is not disadvantageous to New Zealand patent attorneys. Secondly, a New Zealand qualification scheme—there needs to be a New Zealand - accredited course of study, because there are differences between the New Zealand and Australian legislation and the market.

So the Green Party supports a sound system for patenting and innovation that is New Zealand - relevant, and not just borrowed, as we have seen in the relentless drive to import patent regimes from other countries. We have seen it most evident in trade agreements, such as the recently demised Trans-Pacific Partnership agreement (TPPA), where the patent provisions come primarily from the interests of the major patent-holding companies in the United States and, in other cases, from the European Union. I think we need to be very careful that our innovations system is not being loaded down by excessively strong patents and copyright. We note that in the TPPA negotiations there was a reference from officials to overly burdensome regulation that would be introduced by the patents proposals under the TPPA.

In summary, we support this legislation. We call for the flanking measures—as I have outlined—to ensure that New Zealand patent attorneys, and the sector more generally, are not disadvantaged vis-à-vis Australia. We, rather reluctantly, support this bill but would exercise a strong note of caution with regard to harmonisation proposals that affect other professions. Thank you.

I am pleased to rise on behalf of New Zealand First to speak to the third reading of the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill. I want to point out to members in the House this afternoon that New Zealand First, in the first reading of this bill, did support this bill to ensure that the bill went through the select committee process.

At the time, this bill seemed quite like it was a straightforward bill, that it had all the answers to fix all the outdated problems to do with the patents sector, and that it was going to help alleviate the issues that the 2013 Patents Act had actually come up with. We also noted that the bill did have poor drafting, and that kind of alerted us to the fact that, yes, there was a comprehensive relook and redrafting of the Patents Act 2013, and that took effect on 13 September 2014. We knew that that had been a mammoth task and that it seemed that the Act had been spun on its head with the sweeping and massive changes. Our concern was that we were here again, not 2 years but 18 months later, looking at the unintended consequences that those changes, at the time, to that Act actually made to the sectors and industries.

So that is why we did support the bill to the select committee, and I have to say—as other members in the House have said today, in the Committee stage, and the second and first readings—we are pleased that this process did, in fact, occur. What this bill sought was to amend the Patents Act 2013, and a large part of those originally proposed amendments was an amalgamation process of a single patent application process, known as SAP, and a single patent examination process, known as SEP, so that there was finally a trans-Tasman regulatory regime for patent attorneys.

But throughout the select committee process, this bill, sadly, fell apart. It actually haemorrhaged. One of the reasons was that a policy decision was taken to produce a parallel system to that being undertaken globally, without the due diligence required. The biggest problem the Commerce Committee became faced with was getting solid evidence out of our advisers and our officials who had been assigned to us. We pressed our advisers to provide members with a cost-benefit analysis that could demonstrate the actual value of the pilot programme—supported by Minister Goldsmith in this bill—that we knew as the SEP and the SAP.

We asked the Minister, not once, not twice, but actually six times, to reconsider this bill and to pull this bill and actually go back over and make this bill fit for purpose so that good legislation was being passed in this House—not legislation that was wasting members’ time—but that fell on deaf ears. It was quite sad that that fell on deaf ears, because the other major problem was that there was no pre-consultation with either New Zealand innovation businesses or the patent attorneys on the need for the SEP and SAP system before the legislation was, in fact, drafted.

We did hear from 20 submitters, which included two supplementary submissions, and we heard six oral submitters. From this the committee had absolute and overwhelming opposition from the patent attorneys and submitters to the SEP and the SAP system. We also had major criticisms of the implementing of a single trans-Tasman registration regime for Australia and New Zealand patent attorneys. Despite this high-level criticism and this absolute concern and the feeling that there was ignorance and arrogance involved when this bill was being drafted, this area was still saved in the bill, and we are debating that in the third reading today.

Again, this did highlight the fact that the Minister’s advisers had not taken a pre-consultation or, in fact, any type of thorough consultation at all with the patent attorneys or innovators, and the industry itself got consulted with only through the select committee process, when it could be heard. I want to point out that not only was that bad behaviour from the advisers but it was also really poor practice that we would actually have to witness this. I questioned at the time the issue—it was glaringly obvious that an adviser had a personal interest in this bill. The advisers actually were of high concern and—I am sure other members will say this—when pressed and pressed, we just got no solid evidence at all back from them. We did, as a committee, look at some secret papers that we are not allowed to talk to, and I will not do that, but it is hard because those papers alluded to the fact that this bill was not fit for the House.

So the situation still remains the same—that New Zealand First believes that this is a poor bill. Although it has the amendments brought to the House in there, it still has issues with the industry itself coming back and telling us that this is actually going to diminish the very industry that this bill seeks to protect.

We have also heard from previous debates in the House that the origins of the joint regulations are pretty murky and that the SAP and the SEP were a pilot programme that was part of the single economic market, an initiative announced after a prime ministerial meeting between John Key and Kevin Rudd in August 2009. This joint registration is almost like: “Good luck to the last man standing.”, and to date the committee and members are still faced with the mystery of how the Government actually got to that single signal of how this would transpose and be good, and it does remain a mystery today.

The merits of a joint regulation and stand-alone New Zealand regime is still faced with the multi-faceted innovation market and patent attorneys that service it, and, if you would permit, Mr Assistant Speaker, I would like to quote from an article that was written by Doug Calhoun. What he says is that “The regulatory impact statement cost-benefit analysis table compares existing regulatory fees with the fees under joint regulation, making the unlikely assumption that joint regulation fees remain the same as the current Australian fees. The listed cost regulatory fees are taken out of context. Regulatory fees make up only a minute percentage of the costs of patent attorney services to businesses. The list of costs also does not include the extra costs that will be imposed on New Zealand patent attorneys, who would need to take Australia’s qualifying examination in order to become registered. They do not include the administrative and travel costs of expanding the Australian regime into a trans-Tasman regime. Too much has been left out.”

Finally, what was pretty much a straightforward—in this bill is the proposal to correct an unintended consequence, which is to amend the grounds on which a person can oppose a granting of a patent under the Patents Act 2013. This is a correction of a drafting error in the Act and, in order for that Act to meet its original policy, this anomaly needs to be corrected. However, I want to say that the New Zealand Law Society printed an article that said that the proposal to retrospectively bring in regulations for old patent applications “would be unfair for all businesses that made patent applications under the previous law.”, and would disadvantage affected businesses.

This also highlights the concern about imposing time limits on divisional applications, and the time limits set by the new legislation will be highly controversial. Although the Intellectual Property Office of New Zealand (IPONZ) recommended them to be filed within 5 years of the original patent applications filing date, IPONZ has now recommended implementing a 5-year time limit to applications filed under the previous law, the Patents Act 1953. So it is apparent that this is a legislative clean-up job, and what New Zealand First does encourage is that businesses that find the divisional deadline a gridlock should challenge IPONZ on the basis of how IPONZ says it will apply the time limit.

In closing, New Zealand First is absolutely not in favour of supporting bad legislation, and this bill is no different. Amendments have been proposed to the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill. However, this does still not justify the fact that the Government has been forced to do a full turn-around on the bill’s original purpose and does not protect the profession itself. Thank you.

I am pleased to take a call on this Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill in its third reading. I too, in taking a call today, just want to quickly acknowledge what has happened in the country recently with the earthquakes, and add my thoughts and prayers to those families who have lost loved ones, courage to those who remain, and encouragement—certainly, to my own constituents—to dig deep in their support of the community. As many have noted, it is in times like these that the community of New Zealand comes together strongly, and, certainly, my community in Tāmaki stands to join strongly in that.

This is a good piece of legislation, and I do want to acknowledge Minister Paul Goldsmith for having brought it to the House. There have been niggles in the process, I think that is very fair to say, but that is the whole dynamic of the select committees, to work that through. So I am, obviously, acknowledging Melissa Lee and her work there.

At the heart of this bill is, effectively, the continuing development and relationship between New Zealand and Australia, where we try to cooperate more closely and not to duplicate unnecessarily. So, fundamentally, this bill is about seeking, first and foremost, a single register for patent attorneys across Australia and New Zealand. Importantly—as a side note—not all patent attorneys are actually attorneys in the strictly legal sense, but that is the title that they use. We are going to be moving towards a single qualification scheme between Australia and New Zealand and a single code of conduct to facilitate that engagement.

As some others have touched on too, there is going to be a new board, a new area of oversight, again, with New Zealand and Australian representatives. There is a lot of minutiae in the bill. I know a number of colleagues on both sides of the House will be touching on that, and I have in previous discussions, so I do not intend to repeat myself. Fundamentally, this is about drawing New Zealand and Australia closer together—in this case, through the work of the patent attorneys, important as that is. I commend this bill to the House.

Can I begin my contribution by pointing out that the conduct of this bill shows the importance of our select committee processes, because the bill, as it went to the Commerce Committee, was a poor piece of legislation. I think it reflects well on the chair of the committee, Melissa Lee, and Minister Goldsmith, who was responsive to the concerns that had been raised by the select committee, that the bill has largely been sorted out and is in a form that Labour can now support at this third reading.

I would contrast that with some other bills that I have been involved with, notably the Resource Legislation Amendment Bill, which is an absolutely atrocious piece of legislation. It is obvious to everyone on the Local Government and Environment Committee that it needs significant modification, and yet for 5 months the select committee has made no progress on that legislation while things have gone on in the background. The select committee’s skills have not been brought to bear and, unlike the process that has been used in this patents bill, the dire state of the Resource Legislation Amendment Bill does not benefit from the same input from the members of the select committee. Therefore, we are left more in the hands of the Minister and the officials, notwithstanding that it is obvious from submissions that there are fundamental problems with that bill.

So, for those reasons, I actually want to compliment Melissa Lee and the Hon Paul Goldsmith on the way in which they have actually been willing to listen to the issues that came up through the select committee, and have placed trust in the members of select committee to actually bring forward the suggestions that were needed to cure the fundamental problems in the bill. I do think that when you get a bill that is as fundamentally wrong as this one was, both in terms of the cost-benefit analysis that accompanied it to the House and the substantive provisions in the bill, it is actually incumbent upon us as parliamentarians to say to the officials who were behind this: “Really, not good enough.”

It was a pretty poor effort, and it was going to increase the complexity and the cost for New Zealand patent attorneys in a way that was not going to be reciprocated by their Australian comparatives and was not going to save costs through the single patent application process and the single patent examination processes that were proposed. That was not going to work, because the underlying law for patents in each country was still going to be different and, therefore, there would have to be examinations for many patents as to whether those differences in the underlying law in Australia and the underlying law in New Zealand meant that something should either be approved or not approved in Australia or approved or not approved in New Zealand. So the idea that you could have some single patent examination process that was somehow going to save significant cost was wrong. That said, the bill as amended does have the support of Labour, and we thank the Government for its willingness to be accommodating of the concerns that were noted by Labour as well as by submitters on this occasion.

Patent law is very important. It is important that as a society we encourage innovation. Those who are innovating and investing in innovation cannot afford to do so if their innovation can be stolen and replicated by someone else after they have spent that money and investment on that new knowledge or that new invention. That is the philosophical basis for patents. As a society we are better off if we encourage innovation because we benefit from the new discoveries that are made and the new inventions that flow from that innovation.

The return for the patent holder is that for a period following their discovery, they have a monopoly right to the commercial benefits that arise from their discovery. That should not go on for ever. Monopolies do as monopolies are reputed to do, and a monopoly faces much less constraint on its ability to charge or overcharge than if it faces competition, and it is for that reason that there are rules surrounding patents that are quite strict, both as to the length of the patent and as to what is patentable. There has to be a degree of novelty about the invention that is not obvious and that adds to the sum of knowledge that would not have occurred but for the discovery that is published through the patent.

If it was not for patent protection, there would be an incentive for people to keep things secret for ever as a way to protect their invention, but that would mean that invention would not, during the period it is secret, be as widely utilised. Therefore, the benefit to humanity of that invention would be less.

The quid pro quo is that if you make public and then have controlled use of that patented venture—once the patent pops out of its black period during the application phase—the patent itself, which describes the invention, is public so the world learns of it. If it is a great thing, people can beat a path and knock on the door of the inventor to try to get rights to the commercial use of it, and, through that mechanism, can bring that innovation to the world and the inventor gets a monetary reward for that during the period of their monopoly control. At the end of the period it drops off patent and the world is free to use that innovation, subject to there not being other patents that are still current and that could prevent its utilisation of the patented invention.

That is the balance that we try to get right. We want to encourage innovation and we want to give a reward to the innovator, but we do not want to extend their monopoly rights for too long, because that goes the other way and suppresses the use of that invention, to the detriment of humanity. So those are the principles that underlie patent law. There are some differences between New Zealand and Australian patent law that mean that the idea that we could have had a single examination process was not practical. I hope that the Minister is having a look at what went wrong in the background, both in respect of the cost-benefit analysis and the substantive provisions as they were in the original bill.

I stand in support of the third reading of the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill. First of all, I would like to acknowledge the chair of the Commerce Committee, Melissa Lee, for her leadership. There were some issues that were discussed in the select committee, and I think she showed her leadership by acknowledging those issues, which were resolved, and the bill was reported back to the House.

The main purpose of the bill is to update the 60-year-old regulatory regime for patent attorneys, and modernise it in line with the latest regime. Kiwis are known for their innovation, and businesses need to have protection. Most of the business we do is between New Zealand and Australia, and if we have got a single regime where we can have patent attorneys who can work together and have a single application process, it can help businesses to focus more on the innovation part rather than on the paperwork.

This bill is part of the Government’s commitment to helping businesses to grow, not only within New Zealand but also internationally, and our ambition is that a New Zealand company can conduct its business as easily in Australia as it can at home. It is for both sides. The Australians will also have similar provisions, so that they can easily file one application for the patents.

With these words, I commend this bill to the House.

Every time there is a disaster in our country, the community involved pulls together and is, of course, supported by the rest of us. But those of us who are not affected or who are less affected can offer only support and aroha and, in some cases, practical support, and it can be quite difficult to stand on the sidelines and watch the pain of people in those communities. Sunday night affected almost all of us, but, as we know, the people of Kaikōura, North Canterbury, and Wellington were most affected, and the recovery will be tough for those people and businesses. Our thoughts are all with you today.

We know that most people in New Zealand probably will not be watching the debate on the third reading of this particular bill. Having sat through many long hours on the Commerce Committee and been quite astonished—and appalled, really—by the process that unfolded there, I think it is very important to have recorded in the Hansard of this House the impact of poor process and poor governance on a piece of law that goes through our House. It should not go unremarked. It really annoys me that a member can get up in the House and—to be honest—disingenuously try to minimise what was actually a catastrophe of a bill that came before a select committee and ended up coming back to the House gutted by a large percentage. The fact that members who also sat on that select committee can diminish the importance of that—it is no wonder that people are disillusioned with politics and politicians when that honesty cannot actually be there. I think it is important that we do dissect it, and I know that colleagues on this side of the House, particularly those who sat on the select committee, have done that today.

It was unusual and it was disappointing—and it was time-wasting and money-wasting—to have a piece of legislation that had been so poorly prepared and poorly thought through before it came to the House. I think I said in the Committee stage that the Labour Party did the Government a favour by agreeing to, and voting for, the amendments to this bill at select committee. This is because if we had not, and if we had been joined in that by the other Opposition parties, the bill coming back to this House would have been the bill that we had discovered was actually being recommended against by the officials who had put it in there in the first place.

This, of course, related to the significant part of the bill, on the inclusion of a single patent application process and a single patent examination process for a new way of creating patents that was not only out of date, because there was already a new international process being developed through the World Intellectual Property Organization, but would also have been much more costly. When we forensically required the officials to go back and tell us what the cost-benefit analysis was, whether one had been done, and on what basis it had been done, we discovered that those costings, described as guesstimates and back-of-the-envelope costings, were going to be in the order of around $500,000 for an application process. When we considered that, it seemed to be somewhat exorbitant and inefficient, and it went against the original intent of the bill, which was to streamline a process.

I suppose the point to make is that this is not a major piece of law, so what we are arguing about and what we are pointing out is not the biggest booboo that the Government has made, but it is enough of a booboo—and I guess it is an indication of a trend in legislation that comes before select committee that has not been properly looked at and thought through and tested before it actually gets to select committee—for us to be severely concerned. I agree with my colleague David Clark, who said it really does reflect back on the ministerial leadership. Yes, you can blame some of the officials and hold them to account—I think we have done that, and I think we have done that enough—but, ultimately, the buck stops with the Minister. If he had not read it properly and did not understand the implications of it, if he had not asked the proper questions about the basis on which this new patent process was being put into the bill, then perhaps it should not have come before the committee in the state that it did. I mean, it never even went through a proper pre-legislation process. From the process it went through, the clear indication was that it was not going to work, but it still got pushed through and it ended up getting dumped.

Luckily for the Government, the Opposition actually agreed to amending it—to taking out that large piece of the legislation at the select committee—which means that it has come back to the House like this. This piece of legislation almost does nothing, which is why I say it is not a major piece of legislation. It really is a bit of a non-piece of legislation now. It does streamline the way that patent attorneys are trained and the way that they operate in a trans-Tasman context—we have done that with other industries; we have done that with accounting—but this really is not groundbreaking or earth-shattering. It could have been an innovative piece of legislation if the Government had actually done the work properly.

There was a piece of legislation in 2013 that reformed the Patents Act 1953. The Patents Act 2013 did go through a very lengthy, robust, controversial process over a number of years. That was a major reform of a piece of legislation from the 1950s about whether our whole patent law needed to be reformed—and yes, it did. It needed to be reformed and modernised and updated. The most controversial part of that was what it ended up not doing, which we thought was in the best interests of our innovators, and that was to make software patentable. There was, in effect, an exclusion given for software, which still had copyright protection, and it still has protections for intellectual property. If we had made software developments patentable, that would have resulted in the major tech companies that are based offshore coming in with big patent suits, locking up innovation for our small innovators, and also unleashing the force of the patent trolls, which is a hideous industry that feeds off the ideas of others and holds up innovation. We did a good thing with that, and that ended up being a unified approach across the House that had the innovation industry very engaged. I think that was one of the best decisions made in this kind of legislation for a long time.

This piece of legislation is really a joke. It is embarrassing. It was described as “sloppy” and “unedifying” in Labour’s minority view. Minister Paul Goldsmith really should learn a lesson. We hope that he will learn a lesson, and that next time a piece of legislation from him comes before the select committee, he will have done the homework required before it gets to the House for first reading and comes before the scrutiny of the select committee.

I do acknowledge the work done by the chair of the Commerce Committee, Melissa Lee, and other members of the committee. The heavy lifting, to be honest, was done by the Opposition side, but I do acknowledge the chairmanship of Melissa Lee in this bill. I am looking forward to the next piece of legislation from Paul Goldsmith, because I do not think the bar could be much lower.

It is a pleasure to take a short call on this, the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill. I first want to echo the views from around the House and offer my condolences also. I also want to thank my medical colleagues in the region, who are, and will be, providing the care and support that I know they will to this community.

This bill received 16 submissions and two supplementary submissions, including submissions from the New Zealand Institute of Patent Attorneys and the New Zealand Law Society. The main purpose, as has been discussed here, is to implement a single, trans-Tasman registration regime for Australian and New Zealand patent attorneys.

There were many points of discussion. As we have heard, the key point of discussion came around the single application process and the single examination process. On advice from officials and with the will of the Commerce Committee it was decided that there were not any significant benefits in that remaining, so it has been removed.

The other main recommendation from the select committee is for clause 4 to amend section 92 so that potential opposition to applications for more than one invention—what is being called the lack of unity of invention—cannot occur. With that, it is my pleasure to commend this bill to the House.