Patents (Advancement Patents) Amendment Bill

Thank you, Madam Assistant Speaker. I congratulate the member for having this bill drawn. Unfortunately, it’s not a bill that we’re going to support on this side of the House, and I think to justify that position—and I accept that it’s a position that must be justified, because at first blush this might look a good idea—we need to go back and understand, really, what patents are all about.

What patents do is they lock up knowledge. They are, in effect, a statutory monopoly, so real caution is required before we extend the ability—before we extend the State endorsement—of prohibiting others from using what are, by definition, good ideas. Now, patents and monopolies have been around for a long time—since the 1400s, in fact—and for a long time they were used quite inappropriately, really, as a revenue-gathering means. But the balance to be struck, when we’re looking at extending patent law, is a balance between the free use of intellectual property, the ability of people to take the normal arts that are used in manufacture, in producing food, and in embarking upon all kinds of endeavour, and rewarding people for good ideas so that they can in fact be incentivised to embark upon that.

Now, under the current law—and I must say, the current law has been centuries in the making—we have a very clear step, and that is the inventiveness step. This mustn’t be something which is obvious. If we are going to give someone the absolute dominion over this idea, they have to show that it is a flash of genius—something that doesn’t leap immediately to mind but is a real and significant furtherance of knowledge; a really new way to do things.

Now, what we have proposed by the member is an advancement step, and by definition—in fact, in her bill she sets out and points out that—this is less than an invention step. I must say, even on a mechanical basis, I struggle to see exactly how that would work, and we know for a fact that it’s failed elsewhere.

One of the real problems that has occurred is that if we extend this ability to too low a threshold, it simply means that silly ideas—in fact, there was an invention in Australia of a pizza box that could be used as a bib. Now, handy as it might be, it’s not something we need a patent for. We don’t want people locking up ideas and shutting people out. Interestingly, this is used in Australia not by small businesses to innovate but by large businesses to appropriate knowledge to themselves and shut out small players, and that’s not what we need in New Zealand.

We think that the current law strikes an excellent balance—an excellent balance between a relatively significant inventiveness threshold and a good reward for those that cross it. What we don’t want is a quick and dirty system where anyone with half an idea can lock that idea down and exclude others from it. That would actually cut across the kind of innovation, the kind of inventiveness, that we need in our economy today.

So, look, whilst I absolutely commend any idea which encourages small businesses, which looks to encourage new ideas, we’ve got to be very cautious indeed before we have a framework which allows others to exclude knowledge. So, yes, patents are necessary—we’re always here to look at these ideas. The National Party did have an opportunity to do this in the last term when they in fact reviewed the Patents Act, but they clearly didn’t think that this was a good idea.

So to the member, I commend you for having this bill drawn. I commend you for your hard work on it—I know you’ve done a lot of hard work—but we don’t see this as good policy for New Zealand, and we won’t support it. Thank you, Madam Assistant Speaker.

I call Parmjeet Parmar—five minutes in reply.

Thank you, Madam Assistant Speaker. To say that I am disappointed to see the Government’s stance on my member’s bill would be an understatement, because I’m disappointed on so many levels. It’s not only because they are not supporting my member’s bill; it’s also because they don’t even understand what my member’s bill is about.

As soon as I saw that it was Minister Iain Lees-Galloway who took the first call on my bill, I knew that no one wanted to front up and say that they don’t support this bill, because this bill is about supporting small and medium enterprises having this tool of intellectual property rights, and he’s the Minister who has publicly said that he doesn’t care about the survival of small and medium enterprises if they fail because of his policies. So why would they support this bill that is to support small and medium enterprises to support incremental advancements?

I wrote to so many Ministers. Yes, in the Labour Party, I wrote to so many Ministers. I wrote to some members in the New Zealand First Party. I also wrote to members in the Green Party. And did they give me even two minutes to talk about this bill? No. That is how they treat their colleagues. I want to acknowledge one Green Party member, Gareth Hughes, who I had not originally approached, but, because of his interest, I got to talk to him. So, yes, at least he was interested, and he was interested in engaging and having this discussion.

So even if members had listened to my contribution at the start of the first reading, they would have understood what this bill is about. There is no international consistency when it comes to a second-tier patent system. Then they would not have sounded so shallow and would not have embarrassed themselves and embarrassed the whole House.

I want to give this example from the Hon Iain Lees-Galloway’s contribution. Iain Lees-Galloway used the example of the Netherlands and he, like the member before, Duncan Webb, used the example of Australia as well. So in that contribution, the Hon Iain Lees-Galloway said that “As is common in most second-tier patent systems, there was no examination for novelty and an inventive step at the patent office. The unexamined six-year patents created legal uncertainty to competitors.” Exactly—so there was no examination required in their legislation and no examination required in the legislation that Australia is going through different phases on, but my bill is different. There’s a big difference, because my bill requires examination—examination is compulsory. I don’t know if Government members even understand what that means, because they kept giving examples of countries that didn’t require examination. So this is a big difference, and that’s why I say to Government members that they should have read my bill.

One Government member mentioned a company that is lobbying them not to support my bill, and, yes, I visited that company, and that was before the first reading of this bill started. They told me they are not going to support my bill and they’re going to lobby Government members. And, yes, I want to commend that company for their great work, because their job is to protect their interest and they have done well. But what is the job of a Government? A Government’s job is to look after all small, medium, and large businesses—look after the whole country. So what they have allowed here is for one company to dictate a public policy—they’ve allowed one company to dictate a public policy. That is dangerous—that is dangerous. Who is looking after the rest of New Zealand? Not this Government—not this Government. That’s the level of shallowness we have from Government members.

Yes, this is an important tool that is required for small and medium enterprises so that they have intellectual property rights so that other people don’t go out and copy their ideas, but Government members don’t understand that, because for each and every policy area they have working groups to advise them. This is too complicated for them. So they didn’t even bother reading my bill and understanding, and kept giving examples which are not even relevant.

So, at the end, I want to acknowledge my National Party colleagues for their understanding of my passion in this area. I want to especially acknowledge the Hon Chris Finlayson for all the discussions I had with him after my bill was drawn, and I also want to acknowledge all patent attorneys in New Zealand and Australia for their engagement on this bill since this bill was drawn. I want to give special acknowledgment to Grant Shoebridge from Shelston IP for his contribution. And, yes, I am disappointed. Thank you.