WAI 262, Patents and Plant Variety Rights revisited

It is now over five years from the publication of the Waitangi Tribunal report on WAI 262 (commonly known as the Flora and Fauna claim) in July 2011 (see our previous commentary). Since that time the Patents Act 2013 has been enacted. We are also experiencing a renewed interest in bioactives research and commercialisation. There has been no formal response from the Government to the WAI 262 claim. However, it is perhaps a salient time to consider to what extent, if any, the recommendations of the Tribunal in relation to patents have been incorporated into New Zealand law.

The WAI 262 claim was a diverse and wide ranging enquiry. This article deals only with the Waitangi Tribunals recommendations in relation to Intellectual Property under Chapter 2: Genetic and Biological Resources of Taonga Species. A copy of the summary of all chapters of the report and its recommendations can be found here.

1 Key Concepts

The following are key concepts referred to by the Waitangi Tribunal and mentioned in the article below.

kaitiakitanga – the obligation, arriving from the kin relationship, to nurture and care for a person or thing.

kaitiaki – a guardian, a person who has the kaitiakitanga obligation.

matauranga Maori - Maori knowledge, the unique Maori way of viewing themselves and the world. It encompasses both what is known and how it is known and incorporates language, genealogy technology, systems of law and social control, systems of property and value exchange and forms of expression, amongst other things.

taonga – anything that is treasured, including tangible things (such as land, waters, plants, wildlife and cultural works) and intangible things (such as language, identity and culture, and matauranga Maori itself).

tikanga Maori – traditional Maori rules for conducting life; customs, rule, law.

2 Implementation of a Maori Advisory Committee for Patents

The Tribunal recommended the formation of a Maori advisory committee for patents, in order to advise the Commissioner of Patents on Maori interests when processing New Zealand patent applications. The Tribunal considered that the advisory committee should be able to advise the Commissioner of Patents whether matauranga Maori or taonga species have contributed in any way to an invention, whether the proposed use is consistent with or contrary to tikanga Maori, the requirements of patentability (novelty, inventive step, utility) and whether there are kaitiaki interests at risk. The Tribunal considers that the committee should be allowed to investigate any application filed rather than operating on request.

Subsequent changes to New Zealand Patent law

The Patents Act 2013 came into force on 13 September 2016. Section 225 of this Act requires the Commissioner to appoint a Maori Advisory Committee made up of members who, in the opinion of the Commissioner, are qualified for the appointment, having regard to that person’s knowledge of matauranga Maori and tikanga Maori. The current composition of the Maori Advisory Committee can be found here.

The Commissioner may seek advice from the Maori Advisory Committee in determining if an invention is derived from Maori traditional knowledge or from indigenous plants or animals, and if so whether the commercial exploitation of the invention is contrary to Maori values section 226 and section 15. The advice is on request and is not binding on the Commissioner (section 226  and section 227).

Have the Tribunal’s recommendations been implemented

In part. The setting up of the Maori Advisory Committee is clearly in line with the Tribunals recommendations, although the Committee was foreshadowed well before the Tribunal issued its decision. However, contrary to the Tribunals recommendations, the Committee can only act on the Commissioner’s request; they cannot act independently. Moreover, while it is clear they can advise on whether the invention is derived from matauranga Maori or indigenous species, the extent to which they can advise on other aspects of patentability is questionable. The provisions implementing the Maori Advisory Committee are largely in the form consider by the Waitangi Tribunal and were considered to fall short of what would be required.

3 Inclusion of ordre public as a ground of refusal

The Tribunal recommended that the Commissioner be able to refuse patents that are contrary to ordre public. Under the old Patents Act 1953, the ground of rejection was limited to where the use of the invention was contrary to morality. The Tribunal considered that issues of the Maori relationship with taonga species could be considered more an issue of social policy as opposed to morality per se and thus suggested ordre public become a ground under which grant of a patent could be refused.

Action

Section 15 of the Patents Act 2013 allows the Commissioner to refuse a patent if the commercial exploitation of the invention is contrary to ordre public or morality. The Commissioner may seek advice from the Maori Advisory Committee or any other person in determining this.

Have the Tribunal’s recommendations been implemented

In part. Ordre Public is now a ground for refusal under the Patents Act 2013. However, it is limited to where the commercial exploitation of the invention is contrary to ordre public. This does not cover the situation where the patenting itself is the act which would be offensive to Maori.

4 Registration of Maori interests in taonga species and of matauranga Maori

The Tribunal recommended the creation of a register whereby Maori may formally register a kaitiaki interest in a particular species, and or matauranga Maori. The register was proposed to be voluntary.

Action

None. There does not appear to have been any formal register set up.

Have the Tribunal’s recommendations been implemented

No

5 Disclosure requirement

The Tribunal recommended that patent applicants be required to disclose whether any matauranga Maori or taonga species have contributed to the research of the invention. The

Action

There is no requirement in the Patents Act 2013 that an application disclose the contribution of matauranga Maori or taonga species. However, the Act does leave it open to introduce such a requirement by way of regulation (see section 39(1) d)). It is also possible to voluntarily disclose that an invention is derived from traditional knowledge as part of the IPONZ application process.

Have the Tribunal’s recommendations been implemented

No.

6 Amendment of the Plant Variety Rights Act

The Tribunal considered that any new plant variety right legislation should include a power to refuse a plant variety right if it would affect kaitiaki relationships with taonga species. In addition the Tribunal agreed with the recommendations in the 2005 draft Plant Variety Rights Amendment Bill which allowed the Commissioner to refuse a denomination name which is likely to offend a significant section of the community including Maori. In addition discovered varieties would no longer be able to be protected.

Action

None. The Plant Variety Rights amendment bill was not passed and no significant amendments have been made to the Plant Variety Rights Act 1987. The website of the Ministry of Business, Innovation and Employment states:

“The Bill has been placed on hold, pending completion of the Waitangi Tribunal’s report on the WAI 262 claim. The Tribunal’s report was published in July 2011. Further work on the Bill will be considered once the government has completed its response to the Waitangi Tribunal’s recommendations.”

Have the Tribunal’s recommendations been implemented

No.

Conclusion

Since the release of the WAI 262 report there have been some changes to allow or improve consultation with Maori in the intellectual property system. However, these changes fall short of the Waitangi Tribunal’s recommendations. Moreover, changes such as the introduction of the Maori Advisory Committee and inclusion of ordre public as a ground of refusal were already incorporated in the Patents Bill before release of the WAI 262 report. As such there appears to have been little real action taken to implement the recommendations of the Waitangi Tribunal.

David Nowak – October 2016

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