With the current media focus on indigenous rights, in this article we will briefly consider some aspects of patent law as it pertains to the rights of indigenous populations, in particular:
- What is indigenous knowledge;
- What patent protections are currently available in Australia and New Zealand; and
- What the effects of an advisory body have been in New Zealand.
Indigenous Knowledge
Whilst there is no clearly accepted definition, indigenous knowledge (IK) is broadly understood to comprise aspects of traditional knowledge (TK), traditional cultural expression (TCE) and genetic resources (GR) of native flora and fauna. Accordingly, IK can include knowledge or practices that may impact a variety of intellectual property rights. Whilst there is currently no international framework for the protection of IK (although developments are underway in this area)[1], some jurisdictions have implemented their own legislation that either allows for an indigenous population to positively protect aspects of IK (i.e., by obtaining a registrable right that encompasses IK), or otherwise provides defensive protection, whereby any patent application that would impinge on indigenous practices or resources is generally not allowable.
As the international status of the protection of intellectual property originating from IK is beyond the scope of this article, we will instead focus on what mechanisms are available in Australia and New Zealand to protect the IK of First Nations and Māori peoples, respectively.
Patent Protection in Australia
Regarding Australian patent law, there are no specific protections or dedicated frameworks that would preclude a patent applicant from gaining patent protection over an aspect of First Nations IK. However, a scoping study for standalone legislation has recently been concluded by IP Australia[2], which looked at possible models for the protection of Aboriginal and Torres Strait Islander peoples to protect and commercialise their IK. Some of the recommendations made by this study included that: standalone legislation be enacted to create a new intellectual property right in respect of TCE and TK; protection of GR be provided through federal and state legislation in view of the Nagoya protocol[3]; and that amendment to the Australian Consumer Law (or other similar standalone legislation) prohibits the commercial supply of goods or services featuring TCE which are not produced by First Nations people, or with the permission of rights holders.
Notably, this scoping study does not recommend changes to the existing Patents Act 1990, nor other patent-specific measures. Further, it is unlikely that these protections will be implemented in the near future.
Patent Protection in New Zealand
However, the same cannot be said for New Zealand. As is the case with many aspects of indigenous relations, New Zealand already provides patent protection for the Māori peoples of New Zealand by way of an advisory committee.
Section 15 of the Patents Act 2013 provides that an invention is not patentable if the commercial exploitation of the invention is contrary to either public order, or morality. Subsection 15(3) notes that the Commissioner may seek advice from the Māori Advisory Committee when making such decisions.
Māori Advisory Committee
Sections 225-228 of the Patents Act 2013 establish the Māori Advisory Committee and specifies appointments and membership (s 225); the function of the Committee (s 226); the effects of the advice (s 227); and that the Committee may regulate its own procedures (s 228).
The most notable features of the Māori Advisory Committee are:
- That the function of this Committee is to advise the Commissioner (on request) whether an invention is derived from Māori TK or indigenous plants and animals; and if so, whether commercial exploitation is likely to be contrary to Māori values (i.e., contrary to the morals of the Māori people); and
- The Commissioner must consider, but is not bound by, the advice given.
In other words, the Commissioner (or, more likely, the Examiner considering a particular patent application) may refer a matter to the Māori Advisory Committee for advice but is not bound by that advice when making a decision under s 15.
Effect of the Māori Advisory Committee?
Recently, the Intellectual Property Office of New Zealand (IPONZ) expanded the search functions of their patent searching database to include patents and applications that have been referred to the Māori Advisory Committee. Of the 13 applications that have been referred during initial examination (i.e., before issuance of the 1st Examination Report):
- 11 applications have been found to not impinge on Māori values and so no objection was raised under s 15;
- One application did not provide an explicit statement as to the effect of this advice (although this application was later abandoned); and
- One application (NZ 750401) was objected to following the advice of the Māori Advisory Committee, and the application subsequently abandoned.
Relevantly, claim 1 of NZ 750401 was directed to “A dietary supplement comprising manuka honey in liquid, semi-liquid or creamed form combined with one or more nutrient” and none of the dependent claims significantly limited the monopoly being sought. As mānuka honey is produced from the nectar of the Mānuka tree (Leptospermum scoparium) which is indigenous to New Zealand[4], such a claim appropriately falls within the jurisdiction of Māori Advisory Committee. Finally, the Committee and then the Examiner appear somewhat justified in objecting to this application, since the invention seemed to be merely a mānuka honey composition which may impinge the practices or traditions of the Māori people.
Summary
The provisions introduced by the New Zealand Patents Act 2013 in relation to IK appear to strike a reasonable balance, whereby an advisory committee can provide non-binding advice to IPONZ regarding applications that may cause issues affecting the Māori people. Moreover, it appears that such provisions are only sparingly required (or perhaps used), with only 13 referrals to the Committee in the decade since its implementation. Significantly, with only one of the 13 referrals resulting in an objection under s 15, it appears as though the Committee has exercised its function both responsibly and appropriately.
On the other hand, there does not appear to be any appetite for such changes to Australian Patent law, so it appears that there is unlikely to be a corresponding advisory body in Australia any time soon.
[1] Traditional Knowledge (wipo.int)
[2] Scoping Study On Standalone IK Legislation | IP Australia
[3] The “Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefit Arising from the Utilization to the Convention on Biological Diversity” is an international agreement (which was ratified by Australia in 18 June 1993, but has not been ratified by New Zealand) which aims to ensure that the benefits gained from utilizing genetic resources is done in a fair and equitable way – see https://www.cbd.int/abs/about/ for more details.
[4] and parts of Australia, but the IP battle over mānuka honey is too broad to be covered here!