A patent perspective on WAI 262
Matt Adams
International Law Office newsletter, 22 August 2011

AUCKLAND, NEW ZEALAND: In this note, Matt Adams comments on part of the Waitangi Tribunal’s recently released WAI 262 report, regarding intellectual property in the genetic and biological resources of taonga species – that is, flora and fauna that are significant to the culture or identity of Maori tribes. The tribunal observed that Maori are obliged to act as kaitiaki (ie, cultural guardians) towards such species within their tribal areas. He notes that the tribunal recommended the establishment of a Maori advisory committee to advise the commissioner of patents on whether inventions are derived from Maori traditional knowledge or use taonga species; and creation of a mechanism to augment the commissioner’s expertise when dealing with applications that raise issues for Maori. The commissioner should have the power to refuse patents that unduly interfere with the relationships between kaitiaki and taonga. An ordre public clause would provide this power. Ordre public is also relevant to the consequences of failing to disclose use of traditional knowledge in the patenting process. Adams further notes that the tribunal recommended the establishment of a register of traditional knowledge: the act of kaitiaki registering their interest in taonga species will provide a clear statement to third parties of Maori interest, and is intended to give patent applicants fair warning of such interest and of the need to engage with kaitiaki. The register would also allow kaitiaki to record in summary form aspects of traditional knowledge that they consider might be used by patent applicants.

With regard to disclosure, the tribunal recommended the introduction of a legal requirement for patent applicants to disclose the source and the country of origin of genetic or biological material that contributes to an invention, and suggested that applicants should disclose whether Maori traditional knowledge or the genetic and biological resources of taonga species have contributed to the inventive activity that led to the patent application. Read the article [free subscription required] …