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• Patenting Biotech Inventions

There has been a heightened awareness among Maori regarding cultural and intellectual property rights. Maori have made clear that they have strong concerns in relation to the patenting of inventions concerning human, animal and plant life.

In essence, the main concerns would appear to be the following:

• Genetically altering indigenous flora and fauna may not be culturally or spiritually acceptable to Maori, and the Crown should not encourage or recognise such alteration by granting patent rights.
• In granting exclusive rights over (genetically altered) indigenous flora and fauna, the Crown may be perceived by Maori to be infringing their rights to use and control of resources under the Treaty of Waitangi.
• The WAI 262 Claim in relation to indigenous flora and fauna me o ratou taonga katoa specifically refers to the right of ownership and control of the genetic resources of native plants and animals. Some Maori are concerned that these issues should not be discussed further until the Claim has been heard.
• The existence of a patent for genetically altered flora and fauna may limit the ability of Maori to develop uses of indigenous flora and fauna themselves.
• Individuals may obtain information about traditional remedies from iwi Maori They may then either isolate the active ingredient of the remedy and patent this, or alternatively, they may patent the remedy itself.
• Maori may not be able to protect certain of their inventions, particularly those derived from traditional knowledge, in that any publication or public use of the invention before applying for a patent means the invention is not `new', a requirement for obtaining a patent.
• Inventions relating to human life forms, including inventions developed using Maori genetic material, may be patented.

It should be noted however, that there are some inherent limitations to the Patents Act in terms of its ability to address Maori concerns. They include the following:

• Patents relate solely to the commercial exploitation of inventions. Patent holders are merely given the right to exclude others from exploiting the patented invention. The exercise of patent rights by the holder will still be subject to other legislation. It is not possible to prevent or regulate the use and development of biotechnological inventions solely through the Patents Act.
• The Patents Act does not adversely affect the ability of Maori to develop uses for indigenous flora and fauna and genetic materials in their natural state, and for traditional uses. Maori may only be prevented by the Patents Act from exploiting inventions developed by other parties.
• Patents can only provide a limited ownership interest as they are effective for a limited period of time.
• Maori concerns are diverse, encompassing both a desire to conserve and protect their taonga, and also to enable Maori development and commercial exploitation of these where appropriate. A flexible mechanism may be required to balance these sometimes conflicting interests. It appears unlikely that sufficient flexibility can be built into the Patents Act to effectively reconcile these interests.
• The options to grant specific rights to Maori within the Patents Act are limited by New Zealand's international obligations under the Paris Convention for the Protection of Industrial Property, to treat nationals of other member states no less favourably than New Zealand nationals.