Patents threaten to misappropriate Māori knowledge
Senior lecturer Dr Jessica Lai is engaged in research that is trying to quantify the patenting of Māori knowledge and related genetic resources.
New research has identified 77 'families' of patent applications for inventions that are of potential concern because of how they aim to use plant species connected to traditional Māori knowledge.
Around half of the inventions are in the fields of pharmaceuticals or cosmetics, with the United States filing the most applications, followed by China.
Thirty-three of the families cover some aspect of mānuka, either the plant, honey made from it, or isolates from one of these.
Bioprospecting activities have been subject to global debate since the early 1990s, with indigenous communities and developing world nations accusing multinationals of inappropriately researching, using and patenting their genetic resources and associated traditional knowledge.
Common issues include who can consent to research and development of genetic resources, who should benefit from the value of genetic resources, and how traditional knowledge holders should benefit from the use of their knowledge.
This debate arises in various fora, from the domestic to the international level, including the World Trade Organization and World Intellectual Property Organization.To date, it has been difficult to quantify the scale of the problem beyond some common examples and anecdotes.
Dr Jessica Lai, a senior lecturer in the School of Accounting and Commercial Law, and Associate Professor Daniel Robinson from the University of New South Wales are working on a research project co-funded by the University of New South Wales and Victoria University of Wellington to quantify the patenting of Māori knowledge and related genetic resources.
Together with Dr Tim Stirrup from the University of Auckland and intellectual property and traditional knowledge legal consultant Hai-Yuean Tualima, the researchers combed international patent databases to obtain data on the extent to which patents were being sought for inventions using plants endemic to New Zealand with known Māori uses.
Patents of potential concern
The research arises out of a study by Dr Robinson and Dr Margaret Raven from Macquarie University, published last year, on Australian indigenous knowledge and genetic resources that identified multiple patents of potential concern.
Patents are a form of intellectual property that grant their owners up to 20 years of exclusive rights over inventions. Chemicals and biological components isolated from flora can potentially be patented.
The study searched for patent applications mentioning one of 173 plant species with known traditional Māori uses, and identified 1972 patent families.
If an applicant applies for a patent for the same invention in several jurisdictions, these patents make up a patent family. The patent families in the study embodied 2991 applications.
Of the 173 plant species, 24 were endemic or near endemic to New Zealand. These species were mentioned in 171 patent families, of which 77 were identified as being of potential concern because an aspect of the plant species appeared to be more than a minor component of the invention.
These 77 patent families embodied 161 national applications, covering 11 different species, and 43 of the families appeared to cover inventions that were to some degree similar to, or derivative of, Māori knowledge.
The aim of the study was to gain an evidence-based understanding of the extent to which bioprospecting and misappropriation of indigenous knowledge and genetic resources occurs in relation to New Zealand plants.
Just because a plant species is named in a patent is not to say there was any inappropriate behaviour by the applicant or the patent would cause offence. In order to know this, it is necessary to examine exactly what the patent claims exclusive rights over and how the applicant conducted itself.
Traditional knowledge holders could challenge some of the patents identified. This was the case following Robinson and Raven’s work in Australia; a challenge was brought before the Australian Patent Office, IP Australia, and the patent was withdrawn.
More broadly, the research will be relevant for consideration of the Wai 262 Report, Ko Aotearoa Tenei, which addressed the recognition and protection of Māori tino rangatiratanga (sovereignty and self-determination) over their traditional knowledge and flora and fauna. Despite the Wai 262 Report being issued in 2011, the Government has yet to officially respond.
In addition, the findings will be relevant for considerations by the Government about signing and ratifying the Nagoya Protocol to the Convention on Biological Diversity, which deals with access to genetic resources and benefit-sharing with providers.