The Patents Bill and the Wai 262 Report: two solitudes in search of common ground
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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 :
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:
The following are my thoughts of how easy or difficult it might be for the Patents Bill to implement the five recommendations: