Friday, July 15, 2011

Waitangi Tribunal says establish an indigenous advisory committee

One of the recommendations of the Waitangi Tribunal in the WAI 262 report is to establish a Maori advisory committee to advise the Commissioner of Patents about whether inventions are derived from Maori traditional knowledge or use taonga species.

The Tribunal observed that Maori are obliged to act as kaitiaki (cultural guardians) towards “taonga species” of flora and fauna within their tribal areas.  “Taonga species” in turn are flora and fauna that are significant to the culture or identity of Maori tribes.

The Commissioner should have the power to refuse patents that unduly interfere with the relationships between kaitiaki and taonga, on the ground that exploitation of the patented invention would be contrary to ordre public or morality.

The Tribunal recommends that the committee have a mandate in two broad areas of patent law.  The first is to advise the commissioner on novelty.  The second is to advise the commissioner on the existence of kaitiaki interests.

Advice on novelty

The Tribunal says the committee should advise the commissioner on the requirements of patentability: invention, novelty, inventive step (non-obviousness); and utility.

I agree that the committee should bring prior art to the attention of the commissioner for assessing novelty.  Any third party can do this now and will be able to do so once the new Bill becomes law.  However I think it should be the Commissioner not the committee who evaluates the prior art.

The committee needs to be aware that patent applicants are under a duty of disclosure in other jurisdictions.  Any documents relevant to patentability brought to the attention of a New Zealand patent applicant must be disclosed to some of the Patent Offices handling corresponding applications.

Advice on kaitiaki interests

The Tribunal says the committee must be able to advise the commissioner on the existence of kaitiaki interests, even if the patentability criteria are satisfied.  The commissioner can still decline a patent if it is contrary to ordre public or morality.

The Tribunal believes that the committee should be able to advise the Commissioner as it sees fit.  It should have a mandate to investigate any application or patent filed or granted in New Zealand.  The Tribunal says the Commissioner should be required to take formal advice from the committee.

Another recommendation is to provide a mechanism to augment the commissioner’s expertise when dealing with applications raising Maori issues.  The Tribunal recommends that in such cases the commissioner should sit jointly with the chairperson of the committee, or his or her delegate.

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