Abstract
The research, science and innovation system (RSI) in New Zealand seems set to undergo significant changes. Those changes seem to seek to embed the Treaty of Waitangi and mātauranga Māori into the day-to-day practice of universities. Impending change is significant for technology transfer offices (TTOs) as the commercialisation arm of universities. The TTOs’ mission is to produce revenue for their university through commercialising ideas. Medical inventions are highly coveted since they have a greater chance of attracting potential investors and are thus more likely to succeed. Numerous such inventions are developed from taonga species and/or traditional knowledge. TTOs strive to patent those ideas and then collaborate with pharmaceutical or nutraceutical firms to commercialise them. Suppose changes to the RSI system are implemented. In that case, TTOs will need to confront the tension between the existing intellectual property regime and mātauranga Māori in their day-to-day commercialisation efforts. As such, this thesis employs the perspective of the university technology transfer office to investigate, scrutinise and evaluate whether patent law effectively protects Māori medical knowledge from commercial exploitation by TTOs. I use mānuka as an exemplar.
To investigate the question thoroughly, I broke the legal question down into several contextual and investigatory chapters. Chapter I introduces the problem and whether Māori may be able to successfully safeguard Māori traditional knowledge against commercial exploitation by university TTOs by relying on patent law. Chapter II discusses the legal measures currently in place to protect mātauranga Māori and whether those measures are likely to dissuade TTOs from leveraging Māori medical knowledge in mānuka commercially. Chapter III examines TTOs’ commercial use of Māori medical knowledge in mānuka. The concepts of inventorship, ownership and benefit-sharing are addressed in relation to the commercialisation of an invention. I describe various extra-legal concepts and techniques that TTOs should be aware of and that Māori may use to safeguard their mānuka medical knowledge from commercial misuse. Chapter IV discusses the final component of my thesis—the effectiveness of patent law, where I apply an “effectiveness test” to determine whether the law does what it is supposed to do. Chapter V amalgamates all the above into a discussion and conclusion.
While the foregoing factors are cumulative when applied to my discoveries via a technology transfer lens, I question whether patent law on its own successfully protects Māori medical knowledge in mānuka from commercial exploitation by university TTOs. Protection seems more likely to result from legal and non-legal sources. These sources of protection include the deterrent of reputational harm caused by commercialising Indigenous peoples’ knowledge without permission. Patent applications for mānuka also have a high failure rate (83 per cent), as it is difficult to meet the legal tests for patentability. Therefore, mānuka inventions are often unable to be protected or monopolised by TTOs.
These factors contribute to the riskiness of investing in technology associated with Māori medical knowledge in mānuka. Without prior informed consent from Māori and access and benefits agreements, TTOs would require a very strong cause to commercialise such a technology. Once such agreements are in place, it becomes a matter of assessing whether the invention meets the patentability criteria or standards defined by patent law. A convincing case can be made for TTOs to become involved early in the commercialisation of university-derived ideas and discoveries and consider partnering with Māori at the early stage of research ideation.