Cultural Heritage and Patent Law – Alternatives for the Protection of Traditional Knowledge and Genetic Resources

In: I. Stamatoudi (ed), Research Handbook on Intellectual Property and Cultural Heritage, Cheltenham, Elgar, 2022, pp. 73-93

Max Planck Institute for Innovation & Competition Research Paper No. 21-24

Posted: 27 Sep 2021 Last revised: 26 Jul 2022

See all articles by Pedro Henrique D. Batista

Pedro Henrique D. Batista

Max Planck Institute for Innovation and Competition

Date Written: July 15, 2021

Abstract

Among the different cultural heritage assets, genetic resources (GR) and traditional knowledge associated to them (TK) have a technical character and enjoy legal protection in the international law. Due to these characteristics, measures of patent law have been often considered for their protection. Proposals have been made for a positive protection of TK through patents, for its defensive protection to avoid third party patents related to it, as well as for the protection of GR and TK through the adoption of a disclosure requirement in patent applications that may ensure the fulfillment of access and use requirements established by international law. In view of the increasing economic relevance of GR and TK and the diverging level of protection assigned to them in different countries, this chapter offers a critical analysis of these controversial mechanisms. Through it, it aims to indicate if and to which extent cultural heritage may be effectively protected through measures related to patent law.

Keywords: Genetic Resources, Traditional Knowledge, Patent Law, Positive Protection, Defensive Protection, Disclosure Requirement, CBD, Nagoya Protocol, Cultural Heritage

Suggested Citation

Batista, Pedro Henrique D., Cultural Heritage and Patent Law – Alternatives for the Protection of Traditional Knowledge and Genetic Resources (July 15, 2021). In: I. Stamatoudi (ed), Research Handbook on Intellectual Property and Cultural Heritage, Cheltenham, Elgar, 2022, pp. 73-93, Max Planck Institute for Innovation & Competition Research Paper No. 21-24, Available at SSRN: https://ssrn.com/abstract=3928468

Pedro Henrique D. Batista (Contact Author)

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

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