The sealing of the patent in New Zealand resulted in a number of the country's Web business receiving letters demanding royalty fees of up to US$10,000 from the patents' owner, D.E. Technologies, earlier this year.
Nevertheless, Tutaki yesterday said he was confident that D.E. Technologies would not attempt to enforce its intellectual property rights following IP Australia's decision to seal the patent last week and that the move would be overturned by the Administrative Appeals Tribunal.
D.E. Technologies' ambition to have the patent granted in Australia was interrupted briefly after Tutaki filed an eleventh-hour motion with IP Australia to oppose to the patent last July. However, the application failed and the patent was sealed.
But today Tutaki said that circumstances were working in favour of stopping the patent.
"The motion of opposition is actually heard in front of the IP commissioner...I would prefer that an independent, third party like the appeals tribunal make the decision, and that's what we're moving towards right now, which is quite good," said Tutaki.
Tutaki added that the tribunal hearing would provide the opportunity to argue the patent isn't new. The patent broadly describes design for software to manage a business processes required to conduct international commercial transactions electronically.
Tutaki said he would present the court with examples of "prior art" -- technology that pre-dates the period D.E. Technologies claims to have developed its commerce solution -- that will extinguish the patent's claim to inventiveness.
Tutaki claims to have five examples of prior art that will address the patent.
It was widely feared that if D.E. Technologies was successful in enforcing the patent it could cost Australia's ecommerce industry hundred of millions of dollars each year.
The patent has been described as "predatory" by deputy chair of the Senate Standing Committee on communications, Information Technology and the Arts, Senator John Tierney.
The Australian Computer Society has repeated the call it made a year ago, in an appearance before the Government's Advisory Council on Intellectual Property, that business process patent applications need to be the subject of a public call for comments during the examination stage. "Patent office examiners cannot be expected to be aware of relevant prior art because much of it is undocumented and therefoore needs to be solicited", said ACS Vice President, Mr Philip Argy.
Mr Argy, a senior partner in the Intellectual Property & Technology Group at law firm Mallesons Stephen Jaques, and who also chairs the ACS' Economic Legal and Social Implications Committee, noted that the Advisory Council had been deliberating on the issue for some 18 months and that if the ACS' recommendation had been adopted much of the evidence which is likely to be put to the Appeals tribunal on this patent could have been considered by the Patents Office before the decision to grant the patent was made.