Māori Traditional Knowledge and New Zealand Patent Law: The 2013 Act and the Dawn of a New Era?

Abstract

In August 2013, New Zealand passed a new Patents Act that codified the ability of the Commissioner to refuse to grant patents for inventions which are: (1) derived from Māori TK or indigenous plants or animals; and (2) the commercial exploitation of which is likely to be contrary to Māori values. As discussed in this article, for many reasons patents are seldom of interest to indigenous peoples as a means to protect their traditional knowledge (TK). On the contrary, the patent system has predominantly been viewed by indigenous peoples as a means for third parties to propertise their TK. The new mechanism in the 2013 Act may not make patents more attractive for Māori TK, but addresses concerns regarding third‐party patenting of inventions related to Māori TK and indigenous species. This article examines this new mechanism and compares it to the situation under the prior 1953 Act. It concludes that, while many questions remain open regarding the exact application of the 2013 Act, together with the Trade Marks Act 2002 (which contains similar provisions preventing the registration of marks offensive to the Māori), New Zealand has shown that it is willing to be innovative with its intellectual property laws in order to address the concerns of its indigenous peoples.

Making Room for Magic in Intellectual Property Policy

“…For example, the revised New Zealand Patent Act 2013 creates a Māori Advisory Committee similar to that existent for trademarks. Members must, 'in the opinion of the Commissioner', have knowledge of te ao Māori and tikanga Māori (Lai 2013). The use of these vernacular terms signify that there are different epistemological frameworks at play that need to be considered.…”

Combating biopiracy in Australia: Will a disclosure requirement in the Patents Act 1990 be more effective than the current regulations?

“…While the Treaty does not mention IP or cultural heritage, it is clear that these can be considered taonga (Waitangi Tribunal, , p. 21). Although encouraged by government, patents over taonga are often not sought by Māori for their traditional knowledge, as they are considered as another way of “stealing ownership away from original peoples” (Lai, , p. 34).…”

“…In 2013 the NZ government introduced a new Patents Act which was a considerable overhaul to their 1953 Patents Act to reflect modernization of patent law and development of new technologies. It also brought NZ patent legislation in conformity with Australian patent law as amended by the Australian Raising the Bar Act (Lai, , p. 34). However, the New Zealand Patents Act also provides that the Commissioner can refuse a patent if it is substantially based on traditional knowledge.…”

“…However, this falls short of what was lobbied for by the Wai 262 Report. It also means it is likely that the Commissioner may give more weight to public opinion than to the opinion of Committee (Lai, , p. 45).…”

“…Although this legislation is thought of as a positive step in the protection of Māori knowledge, it has been criticized. Jessica Lai (, p . 45) provides some criticisms.…”