The Patents Act 2013: Strengthening Protection for Mātauranga Māori
By clarissa ivanka & tomomi hayashi
I Introduction
The Patents Act 2013 aims to promote innovation while also addressing Māori interests. However, there are ongoing concerns about whether the current framework adequately protects mātauranga Māori from misappropriation. This article will examine the role and limitations of the Māori Patents Advisory Committee and discuss possible reforms, including the adoption of a Traditional Knowledge Digital Library model and the development of a new Sui Generis Intellectual Property system.
II Patents Act 2013
The Patents Act 2013 is the governing legislation of New Zealand’s patent law, which encourages innovation and economic growth by protecting inventor’s rights. It aims to balance the interests of inventors, patent owners, and society by granting exclusive rights for new inventions, while also ensuring that these rights do not unfairly harm the public interest. In New Zealand, the Māori community is particularly vulnerable to the misappropriation and disrespect of their cultural values. The Act attempts to address Māori interests through the establishment of the Māori Patents Advisory Committee.
III Commissioner of Patents
The Commissioner and assistant commissioners of Patents are appointed by the chief executive of the Ministry under the Public Service Act 2020. Their role includes examining patent applications, and granting and revoking patents in accordance with the Patents Act regulations. The Commissioner must also appoint the Māori Patents Advisory Committee.
IV Māori Patents Advisory Committee
The Māori Patents Advisory Committee (MPAC) was established under the Patents Act 2013 to recognise Māori interests. When a patent application appears to involve mātauranga Māori (Māori traditional knowledge), or indigenous plants and animals, the Commissioner may request advice from MPAC. In providing that advice, MPAC applies a two-step test to assess the patent application:
Whether an invention is derived from Māori traditional knowledge or from indigenous plants or animals; and
Whether the commercial exploitation of that invention is likely to be contrary to Māori values.
All appointed committee members must have a deep understanding of mātauranga Māori and tikanga Māori to ensure that patent applications are assessed from a Māori cultural perspective. This reflects wider concerns relating to kaitiakitanga, the protection of taonga species, and the Crown’s obligations under Treaty principles.
V Limitations of the MPAC
While the legislation recognises Māori cultural values and traditional knowledge, many argue that the protections under the Patents Act remain insufficient. This inadequacy is especially apparent when the Patents Act is compared with the Plant Variety Rights Act 2022 (PVR Act). The PVR Act establishes a similar framework by providing intellectual property protections for plant varieties; however, it adopts a more adequate framework for safeguarding Māori interests. For example, the PVR Act explicitly recognises the principles of the Treaty of Waitangi, whereas the Patents Act does not.
Additionally, the role of the Māori Patents Advisory Committee is also limited in practice compared to the Māori Plant Varieties Committee, which has the power to recommend conditions to reduce adverse effects on kaitiaki relationships. Although MPAC can advise the Commissioner of Patents that an application raises cultural concerns, the Commissioner is not legally bound to follow that advice. This raises concern that Māori interests could potentially be overridden in favour of commercial interests. While there have been no known instances where the Commissioner has disregarded MPAC advice, the possibility remains under the current legislation, which continues to cause concern within the Māori community.
Another limitation is that the committee cannot independently review patent applications on its own initiative. MPAC only acts when requested by the Commissioner, meaning potentially contentious applications may go unnoticed if they are not referred for assessment. To better protect mātauranga Māori and address Māori concerns, legislative amendments or stronger mechanisms are needed.
VI New Intellectual Property Treaty for Traditional Knowledge
Furthermore, in 2024, the World Intellectual Property Organisation (WIPO) published the Treaty on Intellectual Property, Genetic Resources and Traditional Knowledge. Despite New Zealand’s contribution within the negotiation, the Treaty's seemingly positive measures to prevent biopiracy has not been directly implemented into the country’s legislation.
Colonialist ideologies have historically suppressed indigenous knowledge systems. Minister Stanford’s decision to restrict te reo Māori words in early childhood education is one example of a widespread pattern of colonialism slowly eradicating the rights and recognition that Māori have fought hard for. It demonstrates that proper investments and collaborations with the Māori community continues to be neglected, preventing appropriate authority and discretion from being given to Māori when applications concern Māori values.
VII Is this enough? What else can be done?
Despite the protections and the Māori Advisory Committee introduced by the Patents Act 2013, New Zealand’s current intellectual property (IP) framework remains insufficient in addressing the issue of biopiracy. Biopiracy is the misappropriation and patenting for profit of Indigenous knowledge, and mātauranga Māori is significantly vulnerable to this threat. As Laine Fisher, Manager at Te Pai Taiwhiti, has described, mātauranga Māori is a fundamental pillar of the Māori community, providing a deep and complex knowledge and understanding of the relationship between people, place and environment. Māori communities have long relied on mātauranga Māori to pass culture and knowledge across generations yet this has not been sufficiently protected within the Patents Act and the Crown’s Treaty obligations to the Māori.
A India’s Traditional Knowledge Digital Library
The Traditional Knowledge Digital Library (TKDL) is a database that contains over 30 million pages of around 2 million medicinal formulations, designed as a defensive tool to prevent the commercial exploitation of traditional knowledge. India’s rich and complex traditional knowledge is expressed in languages of Sanskrit, Hindi, Arabic, Urdu and Tamil, making them vulnerable to biopiracy due to the language barrier that limits access to patent examiners. The TKDL helps overcome this linguistic gap by translating and systematically organising this traditional knowledge. It serves as a bridge that connects indigenous cultural knowledge and western intellectual property law frameworks.
Similarly, biopiracy in New Zealand mainly occurs due to limited access to Māori traditional knowledge and history, which mainly have been passed down through oral traditions. New Zealand could adapt a similar model to create its own database of mātauranga Māori to cover traditional plant uses, art, environmental knowledge, agricultural practices and more. While the Patents Act 2013 already provides some initial protection through the Māori Advisory Committee, one limit is that it can only respond to patent applications made within New Zealand. This means that the Māori Advisory Committee is not able to provide advice on whether an overseas company’s invention is contrary to Māori values. Adopting a digital library similar to the TKDL would be able to fill this gap by making mātauranga Māori internationally visible so it can be cited as prior art and decline misappropriate applications before they are ever approved.
However, although the TKDL has had large success, adapting it within New Zealand would present unique challenges, particularly concerning the publication of mātauranga Māori in a searchable and accessible database. This is because it risks associating things that are tapu (sacred and spiritual) with something that is noa (common). Unlike India’s TKDL which drew on knowledge that had been already documented in ancient texts, mātauranga Māori has mostly been constrained to oral forms, passed down across generations. Not to mention the complexity of building and maintaining the database which would require significant investment and careful engagement with iwi and hapu across the country in order to properly recognise the Crown’s treaty obligations.
B The Sui Generis Intellectual Property System
Amy Wikaira, from the Te Pae Tawhiti team, had proposed developing a sui generis (unique or of its own kind) intellectual property system, not as a defensive tool, but as a framework to ensure Māori can actively benefit from the appropriate use of mātauranga Māori. Unlike the current Patents Act, the suggested Sui Generis system would provide proactive protection and recognition of Māori ownership by shifting away from westernised legal frameworks that were never designed with indigenous communities in mind, towards one that genuinely involves and responds to indigenous groups and their governing frameworks. In practice, this could mean granting the MPAC a wider scope of authority, rather than a purely advisory role, to ensure that traditional knowledge is protected on Māori terms and to genuinely fulfill the principles of te Tiriti o Waitangi.
VIII Conclusion
While the Patents Act 2013 acknowledges Māori interests, the protections available for mātauranga Māori are limited. The MPAC plays an important role but concerns persist due to its lack of binding authority. Stronger legal protections and new approaches, such as TKDL-style database and a Sui Generis system, could play a significant role in protecting mātauranga Māori from biopiracy, ensuring Māori cultural values are genuinely respected.