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Keywords:

  • traditional knowledge;
  • patent law;
  • New Zealand;
  • exclusions from patentability

In August 2013, New Zealand passed a new Patents Act that codified the ability of the Commissioner to refuse to grant patents for inventions which are: (1) derived from Māori TK or indigenous plants or animals; and (2) the commercial exploitation of which is likely to be contrary to Māori values. As discussed in this article, for many reasons patents are seldom of interest to indigenous peoples as a means to protect their traditional knowledge (TK). On the contrary, the patent system has predominantly been viewed by indigenous peoples as a means for third parties to propertise their TK. The new mechanism in the 2013 Act may not make patents more attractive for Māori TK, but addresses concerns regarding third-party patenting of inventions related to Māori TK and indigenous species. This article examines this new mechanism and compares it to the situation under the prior 1953 Act. It concludes that, while many questions remain open regarding the exact application of the 2013 Act, together with the Trade Marks Act 2002 (which contains similar provisions preventing the registration of marks offensive to the Māori), New Zealand has shown that it is willing to be innovative with its intellectual property laws in order to address the concerns of its indigenous peoples.