Traditional Knowledge, Databases and Prior Art – Options for an Effective Defensive Use of TK Against Undue Patent Granting

In: I. Stamatoudi (ed), Research Handbook on Intellectual Property and Cultural Heritage, Cheltenham, Elgar, 2022, pp. 132-153

Max Planck Institute for Innovation & Competition Research Paper No. 21-23

Posted: 27 Sep 2021 Last revised: 26 Jul 2022

See all articles by Reto Hilty

Reto Hilty

Max Planck Institute for Innovation and Competition; University of Zurich; Ludwig Maximilian University of Munich (LMU)

Pedro Henrique D. Batista

Max Planck Institute for Innovation and Competition

Suelen Carls

Bournemouth University; Max Planck Institute for Innovation and Competition

Date Written: July 12, 2021

Abstract

The defensive protection of traditional knowledge (TK) is one of the IP law mechanisms envisaged to protect cultural heritage and guarantee the rights of indigenous and local communities. Through it, information on the prior existence of this knowledge is used to prevent the fulfillment of novelty and inventive step as patentability requirements and, therefore, to avoid the patenting of TK-related inventions by third parties. The creation of TK databases that are accessible to foreign patent offices may facilitate the achievement of this goal. However, to be successful, this measure requires TK to be included in the prior art. This chapter aims to establish under which conditions TK can be considered as part of the prior art and thus be effectively used against undue patenting of inventions based on it. Through the analysis of the public accessibility of the knowledge – including in databases – and of the option of extending the prior art to TK that is not publicly accessible, potential gaps in the defensive use of TK are identified and recommendations for the improvement of its effectiveness are made.

Keywords: Traditional Knowledge, Patent Law, Databases, TKDL, Defensive Protection, Prior Art, Defensive Use, Cultural Heritage, Indigenous Communities

Suggested Citation

Hilty, Reto and Batista, Pedro Henrique D. and Carls, Suelen, Traditional Knowledge, Databases and Prior Art – Options for an Effective Defensive Use of TK Against Undue Patent Granting (July 12, 2021). In: I. Stamatoudi (ed), Research Handbook on Intellectual Property and Cultural Heritage, Cheltenham, Elgar, 2022, pp. 132-153, Max Planck Institute for Innovation & Competition Research Paper No. 21-23, Available at SSRN: https://ssrn.com/abstract=3928543

Reto Hilty

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

HOME PAGE: http://www.ip.mpg.de

University of Zurich

Rämistrasse 74/7
Zürich, CH-8001
Switzerland

Ludwig Maximilian University of Munich (LMU)

Munich, 80539
Germany

Pedro Henrique D. Batista (Contact Author)

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

Suelen Carls

Bournemouth University ( email )

Fern Barrow
Poole BH12 5BB, Dorset BH8 8EB
United Kingdom

HOME PAGE: http://https://staffprofiles.bournemouth.ac.uk/display/scarls

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, 80539
Germany

HOME PAGE: http://https://www.ip.mpg.de/en/persons/carls-suelen.html

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
515
PlumX Metrics