Plant Variety Rights and Patent Acts under review

17 July 2002

Submissions are due soon on the Reviews currently underway on the Plants Variety Rights Act and Patents Act. These two acts have already resulted in the effective patenting of indigenous flora, and products extracted from them, by foreign multinational pharmaceutical companies and others.

The Ministry of Economic Development has put together a consultation document for each Act - the sections on ‘Mäori concerns’ are a particular cause for disquiet.

This alert is in three parts:

• Basic information and some ideas for those of you with not much time to put together a submission, but who are willing to send a letter or comment on the Reviews reflecting your thoughts on the ‘Mäori concerns’ sections;
• More detailed information - an article by Garrick Martin which provides a substantive overview of the issues;
• Where to send your submission/s.

Basic information

* Plant Variety Rights Act Review.

The section titled ‘Concerns of Mäori’ makes rather interesting reading, being as it is the Ministry of Economic Development's ideas on what Mäori concerns are. You can find it here.

At the end of this section there are a number of questions (as indeed there are with the other sections). The first is probably the most crucial: "How could the PVRA be amended to take account of Mäori concerns regarding the granting of proprietary rights over indigenous plant varieties?" Well the answer to that is rather straightforward - the government simply does not have the right to grant proprietary rights over indigenous plant varieties.

* Patents Act Review.

The main section relating to Mäori is ‘Mäori and the Patenting of Biotechnological Inventions’ which is available here.

Again this makes interesting reading, one of the more bizarre sections being:

"108. The importance of developing mechanisms to protect traditional knowledge has been recognised internationally. Work is being undertaken in a number of international fora including the World Intellectual Property Organisation, which has recently established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. New Zealand has signalled its support for work by the Committee on sui generis systems to protect elements of traditional knowledge not covered by existing intellectual property systems. This is consistent with recommendation 10.4 of the Royal Commission on Genetic Modification, that: "New Zealand be proactive in pursuing cultural and intellectual rights for indigenous peoples internationally." The government has agreed with this recommendation, and has directed officials to implement it."

Well perhaps the government is proactive in pursuing such rights overseas - shame that they do not demonstrate a similar determination here. The reference to the Royal Commission, as though it was genuinely concerned with the protection of any indigenous rights in its totally mono-cultural conclusions, is fascinating when compared with what other commentators said about its findings:

"For it redefined all Mäori submissions as values and culture-based and then used the Treaty to effectively dismiss them on the grounds that although the Crown had an obligation to heed such values through consultation "It would be contrary to the spirit and principles of the Treaty were the spiritual and cultural values of either Treaty partner given pre-emptive standing". (8) It did not seem to occur to the Commission that the consequence of its approach was to actually give "pre-emptive" standing to those who sought to belittle Mäori concerns." ('An Exquisite Politeness: The Royal Commission on Genetic Modification and the Redefining of the Treaty of Waitangi', Moana Jackson).

Moana’s article is an extremely useful resource to refer to if you are planning on making a submission to either Review, it is available here.

Also helpful in connection with these Reviews is The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples - what indigenous peoples themselves, rather than the Ministry of Economic Development, have said about Cultural and Intellectual Property Rights. The Declaration is available here.

More detailed information

The NZ Ministry of Economic Development (MED) is currently reviewing the Patent Act (1953) and the Plant Variety Rights Act (1987). Entitled Boundaries to Patentability, the review of the Patents Act poses several steps 'forward' for Intellectual Property Rights (IPR) legislation in Aotearoa/NZ. This article is a preliminary overview rather than a thorough critique of these MED reviews - a more in depth analysis of the reviews is underway. Meanwhile, the patent and PVR review documents are available at Patents Act Review and Plant Variety Rights Act Review.

The assumptions that strong Intellectual Property Rights encourage innovation and foreign investment are reiterated in the review documents, and are linked to the Prime Minister's expressed need to "enhance the innovation system".

As stated in the MED's discussion document for this review of Patent legislation:

"Effectively, a patent is a limited form of monopoly right ... however [it] is considered to be justified, because, in return for granting this temporary monopoly, society benefits from something that it did not have before: the disclosure of an invention that is new and innovative."

Long standing challenges to what constitutes "innovation" and "invention" are acknowledged by the MED, as are some Maori concerns regarding intellectual property rights, but the MED's pro-investment, pro-industry sentiments colour both the Patent and Plant Variety Right (PVR) review documents. The arguments are presented in terms of a balance or choice between protection of biodiversity and traditional rights OR economic prosperity through innovation and investment. Similarly, the MED uses economic arguments to explain why flora and fauna, and isolated genes, should be deemed "products of the mind", with principal concerns for investment returns and patent or plant breeder ownership.

The MED review documents do go to some lengths to explain what patents and PVRs are. And they have obviously been unable to ignore the loud international and local dissent over IPR issues, especially that voiced by Maori. However, the whole process is problematic from the start, with government "consulting" Maori over rights that are acknowledged in Te Tiriti O Waitangi and that have never been ceded. These MED reviews will be completed prior to even an interim report by the Waitangi Tribunal on WAI 262, and as the MED Patent Review document states, "[T]he Wai 262 inquiry is some way from completion. Meanwhile the government is proceeding with legislative reform that may go some way towards addressing the issues raised by that claim".

The government does need to anticipate the outcomes of the WAI 262 claim and take these issues into account, but what is more likely to occur is that this review of the Patent Act will significantly alter the possible outcomes that can come from WAI 262.

During the 1990s the Ministry of Commerce (MOC), and then the Ministry of Economic Development (MED), undertook various 'consultation' processes with Maori on Intellectual Property Rights issues. These consultations included the setting up of the Patenting of Life Forms Group in 1995 and the publication of discussion papers on IPR issues. In 1996 the Waitangi Tribunal commissioned David Williams to report on the WAI 262 claim, and Williams recommended that the Government should not continue to legislate prior to the resolution of the Treaty claims. At that time the MOC had postponed IPR reforms following feedback from consultations with Maori, on which Williams commented: "It is now possible therefore to consider the full implications of the WAI 262 claim without the immediate threat of legislation being passed which is arguably inconsistent with the Treaty Rights of iwi and hapu."

Now, the MED is going ahead with IPR reform anyway, having 'waited long enough', while at the same time proposing further 'consultation' with Maori. As made clear in recommendations of the National Maori Hui to the Royal Commission on Genetic Modification, constitutional issues relating to the Treaty of Waitangi require priority, and when such intellectual property issues are addressed they need to be through "kaupapa Maori processes and contexts". There is also a concern that the consistent attachment, by Government departments, of spiritual and moral concerns specifically to Maori, not only marginalise Maori world views but also conveniently 'disappear' Pakeha spiritual and moral arguments.

And as the intersection of free trade, biotechnology, and intellectual property rights is addressed by Government, it is important to acknowledge that there are many 'ways of knowing'. As Vandana Shiva has noted: "There is no epistemological basis for characterising non-Western traditional knowledge as unscientific and Western knowledge as scientific ... . The idea that modern reductionist science is a description of objective reality, unprejudiced by value judgements, is being rejected increasingly on historical and philosophical grounds."

However, the NZ Government is bound by the international TRIPs agreement (Trade Related aspects of Intellectual Property), and therefore cultural-ethical exclusions to patentability could be opposed through the WTO. As noted by the MED, "Article 27 [of TRIPs] does not expressly allow parties to refuse the grant of a patent on cultural grounds, although such a refusal may fit within the ordre public and morality exception". In other words, the MED acknowledges that there may be a need to make exceptions to patentability for the 'public good', but that commitments to multilateral (and bilateral) trade deals could take precedence over domestic policies. This acknowledgement comes at a time when the NZ government continues to advocate a free market agenda internationally, binding the country to yet more contradictory obligations.

The Ministry of Economic Development's discussion document for its review of the Patent Act (1953) addresses:

• The definition of invention (with 5 proposed options for review);
• Maori and the patenting of biotechnological inventions, and options for Sui Generis mechanisms of protection of traditional knowledge;
• Patents on Biotechnology, and the outcomes of the Royal Commission on GM;
• Plants and Patents, comparing Plant Variety Rights with patents on plants;
• Patenting of business methods and software
;
• Patenting methods of medical treatment of humans; and
• Stringency tests for patentability.

The biotechnology issues outlined in the MED review are interesting in a larger context. For example, the MED broadly defines biotechnology to include 'traditional breeding techniques', thereby marginalising the concerns of organic and traditional farmers. This broad definition also serves to over-emphasise the economic importance of the biotech industry.

The MED review document also states: "It has been suggested that research (and subsequent product development) in the field of genetic modification and other biotechological applications has the potential to be a valuable source of intellectual property for New Zealand, and one that can be sold on to world markets."

Serious questions need to be asked about the probable ownership of this intellectual property, and therefore the net economic benefits to NZ, given:

• a) the Governments open courting of foreign investment into biotech research, including investment subsidies; and
• b) trends to date, where in 2001 a total of 4727 patents were granted in New Zealand, with 4351 of those being granted to non-residents (using the MED's own figures).

Meanwhile, parallel to the review of the Patents Act is a review of the Plant Variety Rights Act 1987. This addresses issues surrounding UPOV '91, which the NZ Government has signed but not ratified. UPOV, the Union for the Protection of New Varieties of Plants, is a regime for the protection of plant breeder's rights, which many countries have 'voluntarily' signed. It is widely thought that strong pressure from the WTO and countries such as the US has coerced developing countries to join, although UPOV '91 arguably opens the door wider to biopiracy and exploitation by giant agri-seed corporations. New Zealand is a signatory to UPOV '78, and the NZ Plant Variety Rights Office and the MED are pro-ratification of the 1991 revision. The TRIPs agreement does not require membership to UPOV, but its ready-made 'solution' to WTO commitments and its effects of further privatising biodiversity are seen as progressive by champions of the 'free' market.

The review of the Plant Variety Right Act also looks at:

• The conflict between PVR's and patents;
• Developments in plant breeding techniques;
• The perceived inadequacy of UPOV '78 regarding 'essentially derived varieties' ( genetically modified plants bred from PVR or patented stock); and
• Farm saved seed.

Submissions on these two MED reviews close on the 26th July. A more extensive analysis of the Patent and PVR reviews will be developed by ARENA (Action, Research and Education Network of Aotearoa) and will be available here.

'Patent Contradictions' was published in 'The Big Picture', May 2002 issue, GATT Watchdog. For more information contact Garrick email.

Where to send your submission/s

By post to Plant Variety Rights Act Review Submissions or Patents Act Review Submissions (or both if you have commented on them together), Attention: Warren Hassett, Regulatory and Competition Policy Branch, Ministry of Economic Development, PO Box 1473, Wellington. Emailed submissions are also welcome. The deadline for submissions to be received is 26 July 2002.

We would appreciate a copy of your submission/s for our files - if you are sending yours, could you also please let us know if it is okay with you for us to upload it to our web site (note: we remove personal details such as home addresses from any articles or submissions posted to our web site unless the author has specifically stated they wish them to be included). Please post to PMA, PO Box 9314, Wellington, or email.

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