5. Māori and the Patenting of Biotechnological Inventions
18. Twelve submissions provided comments in relation to Māori and the patenting of biotechnological inventions.
19. The submissions from environmental and humanitarian groups, like-minded individuals and from the Ngatiwai Trust Board called for a halt to any intellectual property law reform and a partial moratorium on the granting of patents or proprietary rights particularly over indigenous flora or fauna, or products extracted therefrom, until the Wai 262 claim is resolved. Jane Penton called for a total moratorium on the granting of all patents for all types of inventions until the concerns of Māori were considered within the Treaty context.
20. Auckland Uniservices Ltd was against any amendment to the Act to take account of Māori concerns and commented that there should be no Māori Consultative Committee ("MCC").
21. Four submissions favoured the applicant disclosing the source of any genetic material or traditional knowledge used in the invention although opinions were divided on how this should be done.
22. The Greenpeace submission suggested that applicants should be required to provide evidence of prior informed consent from the holders of traditional knowledge (by way of "official certificate"). AGCARM suggested that applicants should be required to provide evidence (such as a statutory declaration or affidavit) of the source of genetic material where there might be an impact on the rights or interests of Māori.
23. AGCARM was against the suggestion that applicants obtain prior informed consent. Both the AGCARM and the NZIPA submissions were against requiring the applicant to consult with Māori during the examination process and stressed the need to preserve the confidentiality of the specification prior to official publication of the patent application. The NZIPA submission noted that Māori, as with anyone else, have the right to oppose the grant of the patent, seek revocation of a patent and, after the Act is amended, the right to seek re-examination.
24. AGCARM and Greenpeace mentioned the need for some mechanism to be in place for IPONZ to consult with Māori concerning the examination of an application. Fonterra commented that IPONZ should have access to specialist advice in relation to traditional knowledge against which patent applications could be judged, but cautioned against any specialist body that might seek to either exert an influence beyond that of consultancy or seek to usurp the role of the patent examiner.
25. Opinions varied on the purpose and function of a MCC and ranged from position that there should be no MCC (Auckland Uniservices Ltd) to the MCC making binding decisions on the Commissioner in respect of patentability of inventions (Greenpeace).
26. The NZIPA suggested that the MCC could have a role in identifying what varieties of indigenous flora and fauna are of common knowledge to Māori and in promoting the formation of a register of Māori traditional knowledge. Baldwin Shelston Waters referred to the MCC having a role in developing a register of traditional knowledge. Such a register would assist patent examiners and others identifying traditional knowledge.
27. Greenpeace and AGCARM suggested that the Commissioner should consult with the MCC where the Commissioner considers the invention impacts on Māori rights and interests. They also favoured the MCC having an independent role in scrutinising all published patents for any inventions which it considered had any impact upon Māori or would be of interest to Māori and for the MCC to consult with the Commissioner over any such published patents. Greenpeace suggested further that the MCC should probably contain representatives from other sections of the community as they too have ethical concerns.
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