3.
section 3.11 |
Analysis of
submissions from
Interested Persons
appendix 2
Outcomes of Consultation: Submissions
from Interested Persons
Section contents
3.
Analysis of submissions from Interested
Persons
28
3.11 Intellectual property issues
186
Introduction
186
Key themes
187
Capture of innovation and development
187
Patents have a time limit
187
Disclosure of information
187
What can be patented?
188
Issues of public interest
188
Patenting of human genetic material
188
Moral aspects of patenting
189
Ethics versus economics
190
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Indigenous issues
190
Patentability of indigenous flora and fauna
190
WAI 262 claim
191
Western views and indigenous views on property ownership
193
International approaches
194
Economic issues
194
Investment costs and returns
194
Cost to access intellectual property
195
Current trends in intellectual property
195
The `race' for intellectual property
196
The `use it or lose it' trend
196
Access to global intellectual property
197
Ownership issues
198
Future opportunities for New Zealand
198
Intellectual property opportunities in the productive sector
198
Opportunities to trade intellectual property
199
Regulation of intellectual property
200
International agreements
200
Current framework is adequate
200
Current framework is inadequate
201
Future approaches to intellectual property
203
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3.11 Intellectual property
issues
Introduction
The Warrant under item (f) called for information on:
the intellectual property issues involved, now or in the future, in relation to the use in
New Zealand of genetic modification, genetically modified organisms, and products
In the context of genetic modification, intellectual property (IP) may become an
issue when people who develop novel processes or products using genetic
modification technology seek intellectual property protection, primarily through
patents and Plant Variety Rights (PVR).
Thirty-eight submitters made substantial comment on intellectual property issues.
Over half of these submitters were from organisations in the economic/productive
sector (22 submitters). The principal sector focus of other submitters making
substantive comment on this issue included the environmental sector (five
submitters) and cultural/ethical sector (four submitters), with the remaining
submitters being from a range of other categories. The most notable category, in
terms of submitter type, was industry associations/networks with 13 submitters
commenting on intellectual property issues. Other significant groupings of types
of submitters commenting on this issue included research organisations (five
submitters) and Maori organisations (five submitters out of a total of six Maori
submitters).
With reference to the stance on genetic modification taken by the 38 submitters
offering substantial comment on intellectual property issues, it was evident that
more of these submitters were in favour of genetic modification than against. Half
of the 38 submitters took a `strongly for' stance on genetic modification, with far
fewer (eight submitters) taking a `strongly against' stance on genetic modification
and the balance spread almost evenly among the intervening categories of `tending
to be for', `neutral' or `tending to be against'.
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Key themes
Submitters tended to address issues in relation to intellectual property around
several key themes including:
*
capture of innovation and development
*
issues of public interest
*
indigenous issues
*
economic issues
*
adequacy of current regulatory mechanisms.
These matters are addressed in the corresponding sections below.
Capture of innovation and development
Submitters provided commentary on how information from innovation and
development of genetic modification is captured in intellectual property. Submitters
made specific comment on the nature of patents, identifying that they had time
limits, that they required disclosure of information, and that a range of uses could
be patented.
Patents have a time limit
Association of Crown Research Institutes [IP22] pointed out that patents were
only short term in nature and that "in general the intellectual property regime is
designed to optimise the benefits by allowing exclusive private use for a limited
period". New Zealand Biotechnology Association [IP47] also mentioned that "a
granted patent restricts the ability of other parties to utilise the invention" and that
"a patent creates only a limited term monopoly". Life Sciences Network [IP24]
commented further, with respect to patents, that their "exclusive right is restricted
in time to a maximum of 20 years and limited in scope to the invention disclosed in
the patent".
Disclosure of information
Royal Forest and Bird Protection Society, Nelson/Tasman Branch [IP43] expressed
the opinion that "intellectual property rights close up public processes and the
availability of information" and noted concern that the public needed information
to determine risks that "genetically engineered organisms" might have on the
environment. However, Life Sciences Network [IP24] did not agree with this
position and noted "patents require full disclosure and availability of the results of
genetic modifications in return for the exclusive right granted". New Zealand
Institute of Patent Attorneys [IP71] expressed the opinion on the contractual
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nature of patents that:
The grant of a patent has its basis in social contract ... in return for public disclosure of
information about an invention ... the inventor receives a time-limited, exclusive right to
commercially exploit the invention.
What can be patented?
New Zealand Institute of Patent Attorneys [IP71] identified that "a gene in its
natural state cannot be patented but once research is done to isolate the gene and
identify its function this may be patented". Monsanto New Zealand [IP6]
commented: "Patents relating to gene technology are process patents rather than
patents of genetic codes ... the `code of life' is not patented, rather the process that
expresses the code."
Submitters provided examples of the use of patents across different industries.
Researched Medicines Industry Association [IP55] expressed the view that
intellectual property protection "is the cornerstone of the pharmaceutical and
biotechnology industries" and "is essential to the availability of new medicinal
therapies". New Zealand Dairy Board [IP67] identified that "biotechnology
patents are increasing exponentially worldwide". New Zealand Transgenic Animal
Users [IP45] made comment that "patenting of GM animals is a contentious and
complex issue that is not yet fully resolved" as it raises issues of debate around the
ethics and morality of "patenting life". Another example of patenting of a
genetically modified product was provided by Nelson GE Free Awareness Group
[IP100], which noted that "Vitamin A [`Golden'] rice developed ... by public sector
worldwide research" was "covered supposedly by 70 patents".
Issues of public interest
A range of submitters, mainly from religious, environmental and Maori
organisations, expressed views on what might be acceptable to be patented and
what should not be able to be patented for ethical and moral reasons.
Patenting of human genetic material
Fifteen submitters raised issues around the potential for privatisation of genetic
material and seven submitters made specific comment on the patentability of the
human genome.
Submitters, principally from religious, environmental and Maori organisations,
expressed the view that human genetic material should not be able to be patented.
Interchurch Commission on Genetic Engineering [IP49] remarked that its
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members "affirm turning down patents for human genetic material, on spiritual
grounds [because] we belong to God". However, it did note that, although against
patenting human genes, it would accept "patenting of specific applications using
genetic information".
A range of groups concerned with environmental issues (including Friends of the
Earth (New Zealand) [IP78], Nelson GE Free Awareness Group [IP100], Golden
Bay Organic Employment and Education Trust [IP104], and Safe Food Campaign
[IP86]) were all of the opinion that life forms should not be patentable. Green
Party of Aotearoa/New Zealand [IP83] also recorded "strong objection" to
patenting of life and the Maori Congress [IP103] noted its fears that "patenting of
life forms" may happen. Greenpeace New Zealand [IP82] supported these views
and sought "a halt to the granting of any patents on life, its parts, products and
processes".
Federation of Maori Authorities [IP69] advocated that patents should not be able
to be held on "organs, cells or proteins of naturally occurring organisms". The
Green Party [IP83] objected to patents on "genes, cell lines and new organisms"
and considered that "only genetic processes should be patented". In a similar
context, Physicians and Scientists for Responsible Genetics New Zealand (PSRG)
[IP107] stated that granting patents on genes was "totally unjustified or
unjustifiable" and that such patents "threaten food security and violate basic
human rights and dignity". PSRG commented further: "Intellectual property law
has been developing using a set of concepts and precedents [that] cannot be
applied to living organisms or genes."
Moral aspects of patenting
Submitters from a range of organisations raised moral questions in relation to
patenting. Friends of the Earth [IP78] believed that the "moral components of
patents should be recognised". Eubios Ethics Institute [IP96] was also of the
opinion that the "morality of patents is one of the more controversial aspects of
biotechnology". Similarly, Maori Congress [IP103] noted that it was "unethical
that intellectual property rights are being discussed in isolation of ... ethical and
moral observations". Association of Crown Research Institutes [IP22] considered
that: "Most of the concerns about patenting GMOs are values-based [and] not
benefit-based."
Auckland Uniservices [IP23] commented that, although "there may be issues
around the ownership of human DNA sequences ... this is an international, not a
national matter to resolve". Greenpeace New Zealand [IP82] also highlighted the
fact that internationally many governments were looking more deeply at the
implications of allowing the patenting of life.
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Nelson GE Free Awareness Group [IP100] raised questions as to the ethics of
some intellectual property issues relating to genetic modification. This group
asked what access "may in future be granted" to the national "heel prick DNA
data".
New Zealand Institute of Patent Attorneys [IP71] concurred that "wide-ranging
moral questions have been raised about genetic modification" and noted that "the
issues are not specific to the patent system and are better addressed by legislative
controls". The Institute identified that section 17 of the Patents Act allowed
refusal of a patent application "on the grounds that it is contrary to morality" and
noted that "the administration of the patent system is not the appropriate place"
for such decisions to be made. The Institute also commented that "action is
needed to clarify ... patentability of humans and intellectual property rights of
indigenous peoples".
Ethics versus economics
Public Questions Committee (Methodist, Presbyterian, Churches of Christ,
Quaker) [IP93] noted concern about the "effect of the profit motive on genetic
research and the development of genetic organisms" and expressed the opinion
that "ethical criteria must always outweigh commercial considerations". Maori
Congress [IP103] also commented that "it is ethically wrong that genetic heritage
could be owned by a handful of companies and government research institutes".
Indigenous issues
Submitters raised a series of intellectual property issues specifically related to
indigenous species or of concern to indigenous peoples, including:
*
patentability of indigenous flora and fauna
*
the WAI 262 claim
*
western views and indigenous views on property ownership
*
international approaches to indigenous issues.
Patentability of indigenous flora and fauna
Ten submitters raised issues relating to the patentability of indigenous flora and
fauna.
Environmental Risk Management Authority (ERMA) [IP76] made the point that
"the issue of `ownership' of genetic information" is a matter of intense debate and
rejection of the notion of ownership "is particularly deep within indigenous
peoples". Te Runanga o Ngai Tahu [IP41] observed that "intellectual property
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issues in relation to genetic modification are [of] concern to iwi" and needed
more attention before decisions were made. Royal Society of New Zealand
[IP77b (social sciences)] commented that "Maori stated quite specifically that
genetic information is owned by whanau, hapu and iwi". The Society also noted
that there "are substantive issues about whether scientific views of genetic
information are relevant to Maori, who map their being through whakapapa,
which can never be alienated".
One of the principal concerns raised by Ngai Tahu [IP41] was that patenting
traditional knowledge and use of products removes ownership from indigenous
people. Ngai Tahu stated that:
While traditional knowledge and use, including medicinal use of indigenous flora, could
provide economic benefit for indigenous peoples, the fact of patenting a process, or
slightly modifying an indigenous species so that it is a new organism, serves to steal these
opportunities and ownership away from indigenous people.
Federation of Maori Authorities [IP69] stated that it did not support "the
claiming to ownership of species or varieties of naturally occurring organisms by
individuals, companies or organisations" but did consider that the existing
legislative framework "should include the protection of traditional knowledge of
native flora and fauna by Maori". An alternative view was presented by Royal
Forest and Bird Protection Society, Nelson/Tasman Branch [IP43], which noted
that it did not support any form of property rights for indigenous species. The
Society commented "indigenous flora, fauna and fish belong here in their own
right" and that "they do not belong to any person". This group remarked further that
"we have guardianship and the responsibility to keep nature intact for the future".
Submitters raised a number of other issues on the patenting of indigenous flora
and fauna. New Zealand Wool Board [IP30] considered that for indigenous species
there was a need "to develop a just and efficient property right to cover the genetic
material and scientific discoveries relating to it". Safe Food Campaign [IP86]
expressed "concern" about the possibility of intellectual property rights for
indigenous species being held offshore. Association of Crown Research Institutes
[IP22] expressed the opinion that "Maori concerns over GM exploitation of
indigenous species can be met through the current legislation".
WAI 262 claim
Several submitters raised the issue of the WAI 262 claim
1
, which relates to the
ownership by Maori of the genetic material from indigenous flora and fauna. WAI
1
The WAI 262 Indigenous Flora and Fauna Claim was registered with the Waitangi Tribunal in December 1991.
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262 claimants, Ngati Wai, Ngati Kuri, Te Rarawa [IP89] outlined that "intellectual
property issues are a primary focus of the WAI 262 claim to the Waitangi Tribunal".
The Claimants identified some of the "concerns" involved in the claim:
In New Zealand burgeoning industries such as pharmaceuticals have created concerns
amongst Maori, and in particular WAI 262 claimants, about the proprietorial rights being
asserted over plant and genetic resources.
ERMA [IP76] noted that "in the New Zealand context, the WAI 262 claim is the
strongest possible expression of Maori feeling toward ownership of native flora
and fauna". Ngai Tahu [IP41] considered that: "There is inadequate legal
protection of traditional biodiversity-related knowledge."
Royal Society [IP77b (social sciences)] also raised the issue of the WAI 262 claim,
commenting that it was an important case relating to New Zealand's biodiversity
and outlined that the claim sought "to re-establish te Tino Rangatiratanga in
respect of the knowledge of native plants and animals and cultural taonga".
Landcare Research [IP12] noted that it had developed specific policies about
intellectual property in New Zealand "which respond to the issues raised in the
WAI 262 claim" and that such policies included "not seeking an ownership
position in native flora- and fauna-based intellectual property until the WAI 262
claim is resolved".
Interchurch Commission on Genetic Engineering [IP49] identified a key principle
of the United Nations Convention on Biological Diversity ("that each country
owns its own genetic resources") which carried with it an obligation that
"intellectual property rights be respected". The Commission's view differed from
that of WAI 262 claimants, as the Commission was of the view that indigenous
resources belong to all New Zealanders, and stated:
The genetic resources of New Zealand inherent in our indigenous flora and fauna belong to
all New Zealanders under the partnership Treaty, and any granting of access to those
resources must be done in accordance with Treaty obligations.
New Zealand Institute of Patent Attorneys [IP71] expressed the viewpoint that,
although Maori were seeking clarification of the extent of their control over
indigenous genetic resources through the WAI 262 claim, the Institute did not
consider this approach to be compatible with the existing patent system. The
Institute recommended that New Zealand took an active role in the World
Intellectual Property Organization to attempt to develop "a separate international
instrument on protection of traditional knowledge and folklore".
An issue of concern raised by Greenpeace New Zealand [IP82] was that
Government intended to reform the Patents Act 1953 but that the timetable for
this review pre-empted the WAI 262 claim which was lodged in 1991.
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Western views and indigenous views on property
ownership
A range of submitters, mainly Maori and environmental organisations, discussed
the differing perspectives of indigenous people and western approaches to
property ownership. The following viewpoint provided by Ngai Tahu [IP41]
outlines the differing approaches to property ownership:
At the core of such intellectual property issues there is a fundamental difference between
the western based "private ownership approach" and that of indigenous communities such
as iwi. The intellectual property approach adopts the inappropriate application of the term
property to traditional resources of indigenous communities. This concept of ownership
and the ability to transfer ownership which are fundamentally common law notions of
property are foreign and incomprehensible to indigenous people such as iwi.
WAI 262 claimants [IP89] commented further that "the western intellectual
property rights (IPR) legal system has increasingly found itself on a collision
course with the cultural and intellectual heritage rights system of indigenous and
traditional peoples" and noted that there were "fundamental differences" in the
ideological underpinnings of these two approaches. The Claimants noted: "The
IPR system is concerned with private economic rights whilst those of indigenous
peoples are collectively based ..."
Federation of Maori Authorities [IP69] made the point that "traditional
knowledge of New Zealand's taonga should be recognised as taonga in itself and
receive protected status". Greenpeace New Zealand [IP82] commented that the
patent system does not recognise traditional knowledge of indigenous peoples.
Along the same lines, Safe Food Campaign [IP86] expressed the view that
intellectual property rights "belong within a reductionist paradigm that fails to
take account of the interconnectedness of life". In addition, Ngai Tahu [IP41]
pointed out that "indigenous knowledge is transgenerational and communally
shared".
Royal Society [IP77b (social sciences)] made reference to "the Mataatua
Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples"
which recognised "that indigenous peoples are the guardians of their customary
knowledge and ... have the right to create new knowledge based on cultural
traditions". With regard to this declaration, WAI 262 claimants [IP89] expressed
the view that this "Draft Declaration on the Rights of Indigenous Peoples is the
most important statement of basic principles for protection of their rights".
Nga Wahine [IP64] commented that "anything created in Aotearoa will be
subject to Maori claims for ownership as kaitiaki". Nga Wahine commented
further "we will continue to exercise our rights as Maori and prevent the
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introduction of GM and GMO experimentation into Aotearoa".
International approaches
Submitters made comment on a number of international treaties and conventions
that affect indigenous people and indigenous resources. Biotenz [IP25] commented:
"New Zealand should continue to argue internationally for IP laws which continue
to give indigenous people access to their traditional uses of biological products."
Maori Congress [IP103] expressed concern in relation to international treaties
that might result in patenting of indigenous resources and stated:
... international treaties such as WTO and the Convention on Biological Diversity legally
codify the right of gene hunters to seize and patent the bodies and resources of indigenous
people and it restricts the ability of governments to control or to regulate the process.
Pacific Institute of Resource Management [IP84] noted that a United Nations
human rights body had called into question the impact of the World Trade
Organization's Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS Agreement) "on the human rights of peoples and communities,
including farmers and indigenous peoples worldwide".
Economic issues
Submitters, principally those who were users of biotechnology raised certain
economic issues on intellectual property including:
*
investment costs and returns
*
cost to access intellectual property.
Investment costs and returns
New Zealand Biotechnology Association [IP47] made comment that "patents are
property and can be bought and sold". New Zealand Dairy Group [IP88]
identified an increasing interest in "the role of intellectual property in wealth
creation". AgResearch [IP13] also made the point that intellectual property rights
allowed investors to obtain an economic return from their investment, and noted
that the granting of patents covered "not only production processes but the
products from those processes". From a differing perspective, Dairy Board [IP67]
commented that "the ability to patent intellectual property is the commercial
driver that leads to new scientific discoveries".
Monsanto [IP6] highlighted the magnitude of investment, noting that its
intellectual property is the "outcome of billions of dollars of investment in
biotechnology" and made the point that although it selectively protected its
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intellectual property, it "currently shares, free of charge, a substantial amount of
intellectual property". Similarly, Agcarm [IP29] estimated that data packages
required as part of the Environmental Risk Management Authority's approvals
process "can cost well in excess of $100 million to generate and are of considerable
commercial value". Researched Medicines Industry Association [IP55] outlined
the significant investment in medical industry intellectual property and commented
that "without solid IP protection, companies could not afford to invest the average
of over $US500 million per product that reaches the market".
Cost to access intellectual property
Lincoln University [IP8], in an accompanying witness brief, made the point that,
although "key GM techniques are freely available throughout the world",
increasingly "applications of the technology are becoming proprietary in nature".
Dairy Board [IP67] commented that intellectual property in many areas of genetic
modification "is already closed off" and gaining access meant paying royalties. It
noted that "currently the Roslin Institute in Edinburgh owns most of the
intellectual property involved in the production of cloned or transgenic animals".
The Board also identified that "there is a strong likelihood that the New Zealand
dairy industry will be forced to carry additional costs to access the benefits of
intellectual property".
Friends of the Earth [IP78] observed that biological scientists "no longer publish
their preliminary results or freely discuss experiments" and identified concerns in
relation to costs associated with patents, commenting:
London Hospital, which provided cystic fibrosis tests for free, must now pay a royalty to
the University of Toronto [which owns the patent on the cystic fibrosis gene] each time it
tests a person for the disease.
A number of submitters raised the "freedom-to-operate" issue with respect to
licence arrangements for intellectual property. AgResearch [IP13] noted:
"Increasingly, the ability to apply new technologies in New Zealand will be subject
to obtaining freedom-to-operate licence arrangements from the owners (often
international) of intellectual property covering genes and transgene technologies".
AgResearch also believed that the "ability to trade New Zealand-owned
technologies will be an increasingly important means" of being able to obtain
freedom-to-operate licence agreements.
Current trends in intellectual property
Submitters identified a series of current trends in intellectual property including:
*
the `race' to capture intellectual property
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*
the `use it or lose it' trend
*
the need for access to global intellectual property
*
ownership and control of intellectual property.
The `race' for intellectual property
Submitters, principally those from the productive sector, highlighted issues
around "the race" that is on to secure intellectual property derived from genetic
modification applications. The following quote from New Zealand Wool Board
[IP30] provides an example of sentiment on this "race" for intellectual property:
If biotechnology is regarded as a race to assemble a "hand of cards", then IP is the formal
name for what we are creating. As a new form of economic currency, the ability to buy,
sell, trade and leverage gene knowledge (that may or may not involve GM) is crucial for
advances in biotechnology, the technology that is expected to be one for the foundations
for economic success in this century. As a biologically dependent economy this is
especially so for New Zealand.
HortResearch [IP5] exemplified how this "race" for intellectual property might
affect important crops:
Around the world there is intense activity in high throughput sequencing of plant genes.
The race is on to sequence the genes of important crops, determine the functions of
important genes, and then to patent their utility. Once patented, the application ... is
controlled by the patent holder, who may demand high licence fees for applications of the
gene.
New Zealand Biotechnology Association [IP47] agreed that New Zealand "must
remain competitive in the race to patent gene sequences" otherwise "it will be
unable to compete on an international level [and would] have to pay licence fees".
Safe Food Campaign [IP86] identified that since the advent of genetic modification
the "use of patenting has expanded".
The `use it or lose it' trend
Eight submitters raised issues around "biopiracy" in relation to intellectual
property arising from genetic modification technology. University of Canterbury
[IP7] observed a "disturbing trend" in the "loss" of intellectual property from New
Zealand. The University stated that intellectual property was "flowing to countries
with enlightened policies in teaching and research".
Meat New Zealand [IP31] and New Zealand Game Industry Board [IP33] stressed
that "we must protect against others gaining intellectual property" and "use it or
lose it". New Zealand Wool Board [IP30] agreed with this stance and commented
"unless New Zealand captures, creates and utilises our own IP in gene knowledge,
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other countries will simply take what they want".
HortResearch [IP5] made a similar point, noting "there is an urgent need to
sequence and protect genes in crops of importance to New Zealand".
HortResearch also commented that if New Zealand did not do this, "competitors
elsewhere will beat us to patenting genes from crops important to New Zealand"
and "industries will be asked to pay high licence fees ... and lose the opportunity
to exercise their autonomy and extend their competitive advantages".
Access to global intellectual property
Crop and Food Research [IP4] noted that "access to global IP is also key for New
Zealand's economic development". Crop and Food Research identified difficulties
in gaining access to global intellectual property, including where "major
multinational biotechnology companies are restricting access to certain genes and
tools of biotechnology through patents and other methods" and where the use of
the intellectual property is for "commercial products" rather than for research.
AgResearch [IP13] also commented "New Zealand will increasingly need to
obtain rights to intellectual property held by international partners". In addition,
AgResearch noted "access to key underpinning genomic patents will be essential if
New Zealand is to be able to practise genetic modification technologies".
Federated Farmers [IP34] noted concern that farmers need access to intellectual
property and that "as technology becomes increasingly privatised and patented
internationally it is vital for New Zealand to develop its own intellectual
property". Meat Industry Association [IP32] expressed the opinion that to date, in
the pastoral industries, New Zealand had developed intellectual property as a
result of New Zealand research. The Association was worried that "if New
Zealand does not conduct the necessary research, it will either not be done, or will
not be available for New Zealand to utilise". Dairy Board [IP67] also made the
point that New Zealand must be able to obtain intellectual property from its
research so that it could "protect and enhance its competitive advantage, ...
acquire royalties or licence fees, ... acquire access to intellectual property".
Other producer groups, such as New Zealand Vegetable and Potato Growers'
Federation/New Zealand Fruitgrowers' Federation/New Zealand Berryfruit
Growers' Federation [IP75], agreed that "the ability to access and use protected
intellectual property is critical", particularly as New Zealand is a small country to
which "many key patents may not be extended". The Federations noted further
that New Zealand researchers "must be able to maintain the ability to develop
and protect their own IP" which they can use "as a bargaining tool to gain access
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to multinational IP".
New Zealand Life Sciences Network [IP24] outlined what genomic information
is in the public domain, stating that:
Recent developments overseas suggest a new international consensus is developing which
will accept that basic genomic information is in the public domain but that research
organisations will be able to patent applications developed from that knowledge.
Ownership issues
Fifteen submitters discussed issues around the monopoly control of intellectual
property by genetic modification patent holders. Environmental and other
advocacy groups tended to express concern about the trend of increasing global
control of gene technology. Friends of the Earth (New Zealand) [IP78] noted that
"the patent system supports the development of international cartels" and that "six
major industrial groups ... control most of the technology which gives the freedom
to undertake commercial R&D in the area of GM crops". Safe Food Campaign
[IP86] highlighted the reliance of New Zealand farmers on transnational
agrochemical companies and noted that five "gene giants" had "control over GM
foods globally". Nelson GE Free Awareness Group [IP100] identified that, in
1999, "patents on life forms ... reached a total of nearly 700, 56% of them
American owned".
Specific ownership issues relating to indigenous resources have been addressed in
the indigenous issues section.
Future opportunities for New Zealand
Submitters, principally from producer and research organisations, identified a
range of opportunities that might result from the development of intellectual
property. Twenty-three submitters noted specifically that New Zealand needed to
capture its own intellectual property.
Intellectual property opportunities in the productive
sector
Wrightson [IP3], in an accompanying witness brief, submitted that intellectual
property would be "developed and traded" and that "acquisition of intellectual
property is crucial to Wrightson's commercial success" and "provides the revenue
necessary to undertake further research and development". New Zealand
Veterinary Association [IP28] also identified opportunities for "creating value
from intellectual property acquired during domestic research, development and
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manufacture of GM-based animal remedies" and noted that such opportunities
should be "preserved and if possible enhanced".
HortResearch [IP5] observed that New Zealand "has some of the best germplasm
collections for kiwifruit, apples and berryfruit in the world" and that
"HortResearch has established a genomics programme which aims to identify
and protect genes/functions/products in these key crops".
New Zealand Wool Board [IP30] identified New Zealand's knowledge and
expertise around the sheep genome as an opportunity "which needs to captured
and utilised for the benefit of the country". The Wool Board also commented that
the "creation and defence of IP around gene knowledge ... will be a major strategic
issue for the sheep industry". Similarly, Meat New Zealand [IP31] identified that
New Zealand's "genetic resources in the form of sheep and beef genomes provide
a unique window of opportunity to secure a strong position in developing large
animal genomics programmes".
New Zealand Game Industry Board [IP33] made the point that "genetic resources
in the form of the deer genome" provide opportunities, particularly as New
Zealand "leads the world in identifying the deer genome". Both Meat New
Zealand [IP31] and New Zealand Game Industry Board [IP33] commented that
New Zealand "must establish a priority position in the ownership of critical IP".
Dairy Board [IP67] identified the potential of "selling intellectual property to
increase milk production in protected markets" as "one way of overcoming trade
barriers".
Biotenz [IP25] and Agritech [IP73] both commented that "New Zealand must
continue to develop intellectual property to ensure that we have the freedom to
operate in the future" and that "failure to develop intellectual property will mean
significant costs for New Zealand in the future".
Opportunities to trade intellectual property
In an accompanying witness brief, Lincoln University [IP8] expressed the opinion
that the "potential for New Zealand to reap financial and social benefits from the
development and ownership of [genetic modification] technology is great". Other
opportunities to be derived from intellectual property identified by the witness
brief were that "the development of such desirable technologies will permit New
Zealand to trade this intellectual property on the international market" and that
intellectual property "will represent the forerunner of Biocurrency, the currency
of the future". Monsanto [IP6] also observed: "A potential impact for countries
like New Zealand is that intellectual property may impact international trade
patterns."
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AgResearch [IP13] made the point that New Zealand must be able to trade in
patented products, for example transgenic animals, otherwise it "will be locked out
of international markets". Crop and Food Research [IP4] also noted that it had
been able to use its own protected intellectual property as "a bargaining tool" to
gain access to multinational intellectual property that might otherwise have been
denied.
Regulation of intellectual property
Submitters raised issues around the regulation of intellectual property including:
*
international agreements
*
adequacy of the current regulatory framework
*
future approaches to intellectual property.
International agreements
Submitters made reference to New Zealand's involvement in international
intellectual property treaties and agreements, in particular the Agreement on
Trade-Related Aspects of International Property Rights (TRIPS Agreement).
New Zealand Life Sciences Network [IP24] pointed out that:
New Zealand, as a member country of the World Trade Organization, is obliged to provide
intellectual property right protection to the standards set in the Trade-Related
Intellectual Property Rights (TRIPS) part of the WTO Marrakesh Agreement.
Life Sciences Network commented further that "New Zealand's intellectual
property rights laws do meet these minimum standards". A range of other
submitters, including Meat New Zealand [IP31], New Zealand Game Industry
Board [IP33] and New Zealand Feed Manufacturers Association/Poultry Industry
Association of New Zealand/Egg Producers Federation of New Zealand [IP35],
all made reference to the fact that "New Zealand is party to international patent
and other IP agreements" and noted that "it is important to protect our assets and
leverage benefit from other IP owned outside of New Zealand".
Friends of the Earth (New Zealand) [IP78] expressed the opinion that the TRIPS
Agreement "has shifted the balance too far in favour of property owners".
Current framework is adequate
A range of submitters considered the current regulatory system for intellectual
property in New Zealand to be adequate. Carter Holt Harvey/Fletcher Challenge
Forests [IP17] identified the current intellectual property regime as "sufficiently
robust to protect true innovation and subsequent commercial advantage" and
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noted that this regime included the "Trade Marks Act 1953; Patents Act 1953,
Designs Act 1953; Fair Trading Act 1986; and Copyright Act 1994". Association of
Crown Research Institutes [IP22] was also of the opinion that the current
intellectual property regime "is effective". New Zealand Institute of Patent
Attorneys [IP71] expressed the view that "the patent system has proven a robust
form of intellectual property protection in the technological age".
Current framework is inadequate
Twenty-eight submitters considered that intellectual property issues relating to
genetic modification were not adequately addressed. Submitters commented on
operational difficulties with the current approval process for genetic modification
applications processed through the Environmental Risk Management Authority
(ERMA), as well as several other problems that legislation or regulation did not
adequately address.
Seven submitters made specific comment on the loss of intellectual property and/
or patentability because of the disclosure of confidential information during the
review process. AgResearch [IP13] expressed concern at the level of information
disclosure required for ERMA applications and was of the opinion that if the
information were made publicly available then the "novelty" might be lost and
intellectual property protection might not be able to be achieved. Meat New
Zealand [IP31] and New Zealand Game Industry Board [IP33] also raised the issue
of the requirement to provide descriptive information in ERMA applications and
the possibility that the applicant "may lose the quality of novelty and thereby
forfeit patent protection". Similarly, New Zealand Biotechnology Association
[IP47] was of the opinion that "disclosure of information to ERMA ... may result
in intellectual property protection being unavailable".
On the issue of information disclosure, Agcarm [IP29] noted that "a better balance
needs to be struck between competing interests" and that "applicants need to be
able to better quantify their chances of success with an application".
New Zealand Institute of Patent Attorneys [IP71] agreed with the above submitters
and noted that:
... the protection for confidential information in regulatory approval processes for genetic
modification and genetically modified organisms are inadequate and need to be urgently
addressed.
Environmental Risk Management Authority [IP76] also expressed concerns that
the Official Information Act and the Hazardous Substances and New Organisms
Act (HSNO Act) did not "provide sufficient protection of commercially sensitive
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information" and that "the mere identification of the organism on the public
register could compromise commercial interests".
On a similar note, Agcarm [IP29] commented that unfair commercial use of
information could arise from "cross-referencing by regulatory authorities ...
[and by] release to competitors, either directly, or indirectly by release to the
public" and suggested that a data protection provision was needed in the HSNO
Act. Agcarm also expressed concern regarding the provision under the Official
Information Act where a decision to withhold information could be overturned by
the Ombudsman, and noted the impacts this had for the release of information in
ERMA applications. Agcarm suggested that the commercial information provisions
of Australia's Gene Technology Bill 2000 (section 45) could present an example to
follow. This Bill provides that the:
Regulator must not use certain information in considering licence application If: (a) a
person (the first person) applies for a GMO licence; and (b) the first person provides
information to the Regulator for the purposes of the Regulator's consideration of the
application; and (c) the information is confidential commercial information; the Regulator
must not take that information into account for the purposes of considering an
application by another person for a GMO licence, unless the first person has given written
consent for the information to be so taken into account.
AgResearch [IP13] commented that the length of time required to complete the
HSNO process caused a considerable reduction in the period for which patent
protection was available.
Wrightson [IP3], in a witness brief, voiced concern regarding the Plant Variety
Rights system and stated that the system put the protection of the company's
intellectual property at risk. New Zealand Arable-Food Industry Council [IP56]
was of the opinion that "New Zealand plant breeders can obtain protection for
their cultivars under the Plant Variety Rights Act (1987)" but that this Act
"requires revision to allow protection of GM cultivars". The Council raised the
question "of whether GM cultivars and products can be protected by a patent in
New Zealand". Friends of the Earth [IP78] provided an alternative view that New
Zealand plant breeders' rights are "adequately protected" by the Plant Variety
Rights Act.
Crop and Food Research [IP4] raised the issue that current patent laws mean that
New Zealand cannot export products to jurisdictions in which the intellectual
property is patented, noting:
As NZ is a small jurisdiction with little market power, we have found that many key patents
are not extended to New Zealand. While this gives us unfettered rights to use the
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knowledge for our own purposes within New Zealand, this is of limited use for an
exporting country. Current applications of patent law mean we cannot export the products
made with the protected IP to the jurisdiction in which that IP is patented.
Monsanto [IP6] made the point that "adequate legislative protection of intellectual
property is fundamental" to its "participation in the New Zealand market".
Future approaches to intellectual property
Crop and Food Research [IP4] and Biotenz [IP25] made the point that whatever
approach New Zealand adopted to intellectual property for genetic modification it
must be consistent with the rest of the world. New Zealand Life Sciences Network
[IP24] noted: "Intellectual property rights protection systems are internationally
accepted as effective and essential economic tools."
University of Canterbury [IP7] raised the issue that "it is important that
regulations minimise disincentives to the beneficial use of knowledge derived from
GE". Dairy Board [IP67] also commented that it was "essential that New Zealand's
policies and intellectual property laws enable the New Zealand dairy industry to
capture the benefits of biotechnology research, including GM research". New
Zealand Veterinary Association [IP28] noted that it did not want to see domestic
research and development harmed by "unreasonable regulation and control". Life
Sciences Network [IP24] commented that "New Zealand's intellectual property
laws ... should not be limited as a result of this Commission's enquiry".
New Zealand Institute of Patent Attorneys [IP71] noted that "the patent system in
New Zealand currently meets international minimum requirements for intellectual
property protection" and stated that "such protection should not be eroded".
Dairy Board [IP67] concurred that "the Commission should not make any
recommendations that would erode the current level of [intellectual property]
protection that can be obtained".