Subject Matter of Protection

Section 1 - Interpretation

"indigenous knowledge" means any knowledge:
(a) that is created, acquired or inspired for traditional economic, spiritual, ritual, narrative, decorative or recreational purposes; and
(b) whose nature or use has been transmitted from generation to generation; and
(c) that is regarded as pertaining to a particular indigenous person or people in Vanuatu;

Scope of Protection

Section 47 - Registration of patents involving indigenous knowledge

(1) If it appears to the Registrar that an application is for the grant of a patent for an invention that is based on, arose out of, or incorporates elements of, indigenous knowledge, the Registrar must refer the application to the National Council of Chiefs.

(2) The Registrar must not grant a patent for an invention that is based on, arose out of, or incorporates elements of, indigenous knowledge unless:
(a) the custom owners of the indigenous knowledge have given their prior informed consent to the grant; and
(b) the applicant and the custom owners have entered into an agreement on the payment by the applicant to the custom owners of an equitable share of the benefits from exploiting the patent.

Exceptions and Limitations

Section 47 - Registration of patents involving indigenous knowledge

(3) However, the Registrar may grant the patent without the prior informed consent of the custom owners if the Registrar is, after consultation with the National Council of Chiefs , satisfied that:
(a) the custom owners cannot be identified; or
(b) there is a dispute about ownership of the indigenous knowledge concerned.
In such a case, the Registrar must not grant the patent unless the applicant and the National Council of Chiefs have entered into an agreement on the payment by the applicant to the National Council of Chiefs of an equitable share of the benefits from exploiting the patent.

(4) If an agreement mentioned in subsection (2) or (3) has not been entered into within 12 months after the patent application has been lodged:
(a) the Registrar may grant the patent; and
(b) the owner may exploit the patent; and
(c) the Registrar is to determine the amount payable to the custom owners or the National Council of Chiefs by the owner of the patent, being payment of an equitable share of the benefits from exploiting the patent.

(5) Any payments made to the National Council of Chiefs under an agreement mentioned in subsection (3) or a determination under paragraph (4)(c) must be used for the purposes of indigenous cultural development.

(6) An appeal lies to the Court from a decision of the Registrar determining an amount under paragraph (4)(c).

(7) An agreement mentioned in subsection (2) or (3) may contain other conditions, including how and when the invention is to be used.

(8) The National Council of Chiefs may issue written guidelines for the purposes of this section.

(9) The National Council of Chiefs must consult with the Vanuatu National Cultural Council before entering into an agreement under subsection (3) or issuing guidelines under subsection (8).