Waitangi Tribunal says refuse patent applications that interfere with indigenous relationships

One of the recommendations of the Waitangi Tribunal in the WAI 262 report is to grant the commissioner the power to exclude patents that are contrary to ordre public as well as morality.

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, says the Tribunal, should have the power to refuse patents that unduly interfere with the relationships between kaitiaki and taonga.  An ordre public clause would provide this power.  Ordre public is also relevant to the consequences of failing to disclose use of traditional knowledge in the patenting process.  I cover the disclosure requirement in an earlier blog post.

The Tribunal doesn’t give a lot of guidance as to when an ordre public rejection should be made.  The Commissioner is supposed to balance the interests of kaitiaki, the applicant, the wider economy and community, and the species itself.