Much of the literature about the IP system and Indigenous peoples is either about how the former does not coalesce with the desires, interests and worldview of the latter,1 or about superficial ‘success stories’.2 At the time of writing, the focus of the first category of work was on how this results in Indigenous peoples not being able to take advantage of the IP system. Instead, third parties are able to take Indigenous people’s culture and knowledge and shape it into something recognized by the IP system.3 There are few in-depth examinations of Indigenous peoples’ use of the IP system, how such uses play-out across the lifetime of the IP, and how conflict and convergence between Indigenous people’s knowledge and the patent system are not mutually exclusive. This article contributes a case study to this space, investigating hāngī patents in New Zealand.

Hāngī is a Māori method of cooking food steeped in technique and surrounding custom, knowledge and values.4 It typically involves placing the food (usually meat and root vegetables) in baskets, placing these in ground pits over heated round stones,5 covering these in wet flax matting or leaves (and, today, wet cloth or sacks), followed by earth.6 Traditionally, the stones were heated by burning mānuka (Leptospermum scoparium) wood,7 because it burns hot and clean, leaving a fine ash.8 The food largely cooks through steam. The resultant food is moist and tastes smoky. In Māori culture, kai (food) connects people, Atua (Gods) and the whenua (land), and hāngī has traditionally played an important role at social gatherings and manaakitanga (showing respect, care and hospitality).9

While hāngī continues to be a common method amongst Māori to cook food, particularly at large gatherings,10 it has some shortcomings. In particular, it is labour- and time-intensive, it is difficult to know when the food is cooked, meat can be overcooked on the underside and undercooked on the topside, it can be difficult to completely control the flavour of the food, and there are concerns about food standards and safety.11 There are inventions that seek to address some (or all) of these disadvantages, patents for which are at the heart of this article.

The purpose of this article is not to highlight ‘successes’ or to venerate the patent system, but to explore whether and how there might be both conflict and convergence, simultaneously, between Māori business interests in inventions derived from mātauranga Māori (Māori knowledge in its broadest sense)12 and the patent system. It would be incorrect to write about ‘successful’ uses of the patent system, as this would ignore that both the convergence and conflict happen within a capitalist system—a system that colonization has forced upon Māori,13 and convergence with which can both entrench colonialism and create sites of conflicting worldviews. In other words, a convergence is not necessarily a ‘success’.

Hāngī patents were chosen for the case study for several reasons. First, hāngī is a well-recognized aspect of mātauranga Māori.14 Second, there are only four granted patents for hāngī-related inventions in New Zealand and all four name only Māori inventors, which makes it an interesting case study to assess how certain Māori interests in that derived from mātauranga Māori might converge with the patent system. Third, one hāngī patent has gone through examination, and there are High Court and Court of Appeal decisions regarding the infringement of one of the patents by two Pākehā (non-Māori, usually of European descent) men, which highlight the conflict between te ao Māori (the Māori world view) and the protection patent rights offer.

Section 2 of the article explains the patent search and its findings and contextualizes this within the businesses that their owners created around the patents. While Section 2 illustrates how Māori businesses can be built around mātauranga Māori-related patented inventions, Section 3 examines the limitations of the patent system vis-à-vis such inventions by dissecting the way (as relevant) in which the inventions and patents were prosecuted in the Intellectual Property Office of New Zealand (IPONZ) and interpreted and assessed for validity by the courts. The paper concludes by noting that Māori can benefit from a system that protects their inventions, but that the patent system is not necessarily ideal towards this.

Source: https://academic.oup.com/jiplp/advance-article/doi/10.1093/jiplp/jpaf036/8197935