Using Patents to Protect Traditional Knowledge

Abstract

The role that intellectual property can play in the protection of traditional knowledge (TK) has been on the international agenda for more than ten years, with little to show for it. For example, the World Intellectual Property Organization (WIPO) has provided a forum for international policy debate on the subject since 1998, and the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has held meetings on draft provisions for the protection of TK against misappropriation and misuse since 2001. Similarly, since 1999 the World Trade Organization (WTO) has been examining the most effective means to deal with the commercial use of TK when that knowledge is the subject of patent applications. Years of effort have produced few tangible results. While there has been little movement internationally, several nations, particularly developing ones, have attempted to provide a measure of protection for TK at the national or regional level. As international discussions drag on, pressure will likely increase for countries rich in TK to seek recourse in national or regional solutions. Prominent among those solutions will be the use of patent law. This article will review the benefits, shortcomings, and challenges of using patents to protect TK and survey some of the efforts that have been undertaken so far.

Keywords: Intellectual Property, Patents, Indigenous Knowledge, Prior Art, Conference of Parties, Affirmative Patent Protection, Inventorship, Defensive Protection, TRIPS Agreement