It's a Matter of Trust: Joint Inventorship and Traditional Knowledge Owners

16 Pages Posted: 23 May 2019

See all articles by Ana Penteado

Ana Penteado

The University of Notre Dame, Australia

Date Written: November 15, 2018

Abstract

This is a paper on joint inventorship for Indigenous Peoples, which subject matter is an intangible asset defined generally as Traditional Knowledge. We present arguments to deal with joint inventorship for such intangible collection of methods, processes and discoveries involving manipulation of plants and chemical knowledge belonging to Traditional Knowledge owners. As prospective patentees, their innovative techniques applied for therapeutical use on humans based on knowledge acquired from local plants should be acknowledged as an economic element in the intellectual property legal frame for a claimed invention.

The second argument supports Traditional Knowledge owners as co-patent holders on their intangible subject matter for a just legal system. It is generally accepted that an inventor’s rights are inclusive from the time of conception, when ideas are in development, to regular practice, when the prototype is ready and workable. Joint inventorship is not a novel concept, but it has been used quite often with some good results. For instance, inventions based on business methods have been accepted as subject matter for a patent, which usually involves more than one inventor. However, co-ownership in inventions unveils issues with trust and transparency when one patent holder decides he is entitled to exercise exclusive rights.

Having intellectual property protection to orally transmitted knowledge on use of plants with Indigenous therapeutic utility is novel.

This paper discusses patent co-ownership based on international jurisprudence, particularly in Burroughs Welcome & Co v Barr Laboratories, which tested the limits of collaboration in independent research teams working in the same invention with non-contractual arrangements in pharmaceutical projects. Most recently an Australian joint patent application by The Chuulangun Aboriginal Corporation of a patent for medicinal use with the University of South Australia has illustrated an entrepreneurial activity in Aboriginal Australia to protect and commercialise medicinal flora associated to Traditional Knowledge. The question is whether intellectual property policies have welcomed such novelty or are stalling them from happening; if so, it is time to welcome trust among the parties involved, especially newcomers as Traditional Knowledge owners.

Keywords: Traditional Knowledge, joint inventors, intellectual property, patentability eligibility, patents, chemical knowledge, medicinal use, Aboriginal Australians, Chuulangun Aboriginal Corporation, HIV, Welcome Barr & Laboratories, independent research

JEL Classification: Q, K, K12

Suggested Citation

Penteado, Ana, It's a Matter of Trust: Joint Inventorship and Traditional Knowledge Owners (November 15, 2018). Available at SSRN: https://ssrn.com/abstract=3384070 or http://dx.doi.org/10.2139/ssrn.3384070

Ana Penteado (Contact Author)

The University of Notre Dame, Australia ( email )

140 Broadway, Sydney,
2007
Sydney NSW, New South Wales 2007
Australia

HOME PAGE: http://https://www.notredame.edu.au/about/schools/sydney/law/school-staff/ana-penteado

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