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A guest blog by Doug Calhoun

In an earlier post on the Patents Bill: I mentioned that the introduction of the Bill had been delayed for 14 years because of concerns about the Wai 262 claim. Nearly fifteen months after the Wai 262 Report was completed there has still been no formal government response to it.

The Patents Bill proposed to “address” the Wai 262 claims by establishing a Maori advisory committee to advise the Patents Commissioner (on request) on whether:

“a) an invention claimed in a patent application is derived from Maori traditional knowledge or from indigenous plants or animals; and
(b) if so, whether the commercial exploitation of that invention is likely to be contrary to Maori values.”

The Commissioner must consider but is not bound by the advice of the Committee.

Quite apart from whether or not it implements the Wai 262 Report recommendations, the provision contains the vague and subjective expressions “derived from” (derived to what extent?); and “contrary to Maori values”.

The critical question that is left unanswered is, so what?

The Patents Bill requires the Patents Commissioner to examine every patent application and if it is found to meet the patentability criteria – to grant a patent. But it does not specify what the Patents Commissioner is supposed to do if the Committee advises that an invention is derived from traditional knowledge and that its exploitation is likely to be contrary to Maori values. Neither is among the criteria the Commissioner is to consider.

The Green Party Amendment

The Green Party introduced a proposed amendment (SOP124) on 11 September. This will come up for a vote during the committee stage in the next few weeks. The amendment would declare that organisms and traits in organisms are not patentable inventions. “Organism” would mean the same as it does in the Hazardous Substances and New Organisms (HSNO) Act. It would include both naturally occurring and modified organisms.

The amendment seeks to exclude “traits in organisms”. But patents are granted for products or processes that are a practical application of a trait – they are not now and never have been granted for the traits themselves. The HSNO definition of “organism” includes a microorganism. Such an exclusion is not permitted under Article 27.3 of the TRIPS Agreement.

Steffan Browning, in discussing the amendment in the second reading debate, said:

“Allowing the passing of this bill without supporting my Supplementary Order Paper will lead to the continued blocking of pure research, of open research. Private profit-making from our collectively owned genes and resources will, importantly, continue the process of stealing resources, this time including the intellectual property of Maori—removing it from the commons for private gain.”

This argument was made by Greenpeace New Zealand to the GM Royal Commission. The GM Report, Chapter 10 concluded:
“117. The economic benefits of intellectual property systems are generally considered to be positive. Removing biotechnology developments from coverage by patent or property rights systems would not necessarily have the effect that opponents to such applications want. New inventions or ideas would probably be kept as trade secrets or “know how”, and, in the absence of the disclosure required by patents and PVRs, be held even more tightly. Not allowing New Zealand inventors and investors to protect their work under an IPR would leave them in an invidious position against the rest of the world. It would also place New Zealand in breach of its obligations under major trade agreements.”

“118. The Commission sees a need to address some tensions or gaps, notably in the exemption for patenting of human beings and their biological processes, and the development of an appropriate framework for the protection of traditional knowledge and taonga of Maori. However, we are not persuaded that the IPR system is antithetical to the appropriate development and regulation of genetic modification.”

This recommendation was followed in both the original Patents Bill and the Bill as amended by the select committee.

The Green Party proposal is also not an approach recommended in the Wai 262 Report.

The Wai 262 Report

The Report is in three volumes of over 1,200 pages. So it is not that surprising that there has not yet been a government response. The interface between patents and the Wai 262 claims is only a relatively small part of its recommendations.

The report reviews developments in science and then analyses its understanding of the concerns of both sides in the debate:

“These developments have created a point of potential tension between those who wish to utilise private property rights in the genetic and biological resources of plants and animals to create wealth, and kaitiaki who often have very different priorities. We explained above how research science is founded on an empirical world view that is blind to many aspects of te ao Maori. Patents, and the commercial system they serve, are likewise at odds with te ao Maori in fundamental ways. The idea that knowledge about the specific properties of a taonga (such as kawakawa or manuka) can be parcelled up and assigned to different owners is, in itself, alien to the relationship-based world of mauri and whanaungatanga. As with research science, the patent system is founded on a set of values that are not those of kaitiaki. Its central concerns are the advancement of knowledge and the protection of commercial interest in that knowledge, rather than mauri or environmental values.

There is also tension between Maori and Pakeha approaches to access to knowledge. Pakeha culture places great value on unrestricted access to knowledge and ideas. This has long been seen as a precondition to progress. Of course, access to knowledge and ideas even in the public domain is constrained in Western societies by laws relating not only to IP but also to public safety, defamation, moral standards, and privacy, to name a few. But the principle that access should be as unconstrained as possible is fundamental to Western thinking. By contrast, Maori culture does not place such great value on free access. Concepts of tapu, mauri, and whakapapa tend to suggest that access must be earned. The first priority of kaitiaki is to protect rather than publish information. That is not to say that matauranga Maori is always secret. Far from it. But kaitiaki are often very uncomfortable when they have lost oversight of readily available matauranga Maori.”

The Report then attempts to measure the dimensions of the square hole and round peg it has been tasked to accommodate:

“ These tensions go to the heart of the ways in which we generate knowledge and wealth in New Zealand. The central question is whether our current system can accommodate a new set of rights to be held by kaitiaki communities and individuals who do not share the values upon which the system was built.”

… the issues the claimants brought before us were focused on specific but related areas :

  • unauthorised use of matauranga Maori in research based on bioprospecting, and the resulting unauthorised scientific or commercial use of genetic and biological resources of taonga species;
  • offensive interference with the whakapapa of taonga species when they are subjected to genetic modification ; and
  • use of the IP regime to exploit rights in the genetic and biological resources of taonga species in ways that exclude kaitiaki and undermine the relationship between kaitiaki and taonga species.”

The Patents Bill debate is focused on the third issue – the use of the patents regime in exploiting rights in the genetic and biological resources of taonga species.

The Wai 262 Patent Recommendations

The Tribunal tried to take a balanced approach that both sides could live with:

“As will be seen in the chapters to follow, we do not always agree with the way the claimants framed this problem, but where we do, we look for ways in which the priorities of kaitiaki can be relocated from the margins of legal or policy discourse to the centre, where they can be properly and transparently weighed against other considerations. Sometimes our recommendations are procedural – a simple requirement on the Crown to notify or consult with kaitiaki; sometimes we recommend that new substantive standards be introduced – for example, positive obligations on Crown agencies to explore partnership opportunities with kaitiaki; and sometimes we recommend statutory decision-makers should change – whether by vesting power directly in kaitiaki in some cases or by the creation of new partnership mechanisms.”

“In all cases, the innovations we recommend are designed to express the new generation of Treaty partnership in which Maori have a meaningful voice in the ongoing fate of their taonga, and the partnership itself is not static but is being constantly rebalanced.”

“It is no longer possible to deliver tino rangatiratanga as full autonomy in all cases in which taonga Maori are ‘in play’, as it were. After 170 years during which Maori have been socially, culturally, and economically swamped, it will no longer be possible to deliver tino rangatiratanga in the sense of full authority over all taonga Maori. Yet it will still be possible to deliver full authority in some areas. That will be either because the absolute importance of the taonga interest in question means other interests must take second place or, conversely, because competing interests are not sufficiently important to outweigh the constitutionally protected taonga interest.”

The specific recommendations that the report makes that might be incorporated in the Patents Bill are:

  1.  “… kaitiaki relationships with taonga species and matauranga Maori are [to be] expressly protected in accordance with their proven depth (unless it can be demonstrated that other interests deserve priority). This includes a mechanism to ensure that any matauranga Maori is treated as a key factor in decisions about whether a patent application is novel or involves an inventive step.”
  2. “… the establishment of a Maori committee to advise the Commissioner of Patents about whether matauranga Maori or taonga species have contributed in any way to the invention, and whether the proposed use is consistent with or contrary to tikanga Maori. This advice should be relevant to the requirements of patentability and (even if the patentability criteria are satisfied) whether there are kaitiaki interests as risk.”
  3. “… the commissioner be empowered to refuse patents that are contrary to ordre public as well as morality. … the committee should not be reactive : the commissioner should be required to take formal advice from it, and work in partnership with a member of the Maori committee when making patent decisions that affect the kaitiaki relationship.”
  4. “… kaitiaki be able to formally notify their interest in particular species or matauranga Maori by way of a register. … kaitiaki should always have a right to object to a patent application, whether or not they have registered their interest.”
  5. “… patent applicants be required to disclose whether any matauranga Maori or taonga species have contributed to the research or invention in any way. IPONZ must make these records publicly available. Patent applicants who fail to comply with a disclosure requirement can be subject to a range of outcomes, from no sanctions at all to the being revoked, to be decided by the commissioner and the chair of the Maori committee.

My Thoughts

The following are my thoughts of how easy or difficult it might be for the Patents Bill to implement the five recommendations:

  1. The second part of this recommendation is already accommodated. Under the Patents Bill novelty and inventive step are to be judged against a prior art base. Matauranga Maori fits within the definition of “prior art base”, provided it has been made available to the public in some way. Where there may be difficulty is if matauranga Maori has not been made available to the public, and kaitiaki are opposed to it being made available. But how does one judge when “other interests deserve priority” – a call that is to be made under the first part of this recommendation?
  2. The Patents Bill would establish the committee. But the words “contributed in any way to the invention” and “use is consistent with or contrary to tikanga Maori” are fraught with uncertainty, especially when used to define the boundaries of property rights.
  3. The third recommendation answers the “so what” question left hanging by the provisions in the Patents Bill. But the understanding of the meaning of “ordre public” goes beyond what it is understood to mean under the European Patent Convention – where the term that is used in the TRIPS agreement originated. (The report acknowledges that its recommendations must be compliant with TRIPS.) And Recommendation 10.5 of the GM Report urged New Zealand to pursue amending TRIPS “to include a reference to the avoidance of cultural offence as a specific ground for exclusion or reservation” – inferring that the commissioners thought that an exclusion like the Wai 262 Report suggestion would not comply with TRIPS.
  4. The fourth recommendation would assist in doing a prior art search to determine if any matauranga Maori is in the prior art base. But, given the optional nature of the recommendation, a negative prior art search could not be relied upon.
  5. This is the most problematic of the recommendations for many reasons. Discovering new properties of or uses for a known taonga species may have been done without any use of matauranga Maori (known to the researcher) – leaving a researcher in a dilemma as to whether any disclosure of origin needs to be made. The nature of the applicable penalties if a disclosure should have been made (and was not) has been the subject of debates over a number of years. They have been hotly debated in both the Convention on Biological Diversity forums and the Intergovernmental Committee of the World Intellectual Property Organisation. Any provision to implement this recommendation that is out of step with whatever is finally agreed to internationally could put us offside with our international trading partners.

Accommodating “a new set of rights to be held by kaitiaki communities” within the existing intellectual property regime was never going to be easy – and the new Patents Bill may be where the rubber first hits the road. Good luck to the policy advisors on this one.