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Issues and Options for Traditional Knowledge Holders in Protecting Their Intellectual Property

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Issues and Options for Traditional Knowledge Holders in Protecting Their Intellectual Property CHAPTER 16.6 Issues and Options for Traditional Knowledge Holders in Protecting Their Intellectual Property stepHen A. HAnsen, American Association for the Advancement of Science (AAAS), Science and Human Rights Program, U.S.A. JUstin w. van Fleet, Principal Consultant and Director, The Advance Associates, LLC, U.S.A. ABSTRACT continued survival. Key examples of TK are these Traditional knowledge (TK) is the information that peo- uses of biological resources: ple in a given community, based on experience and adapt- • plao-noi in Thailand for the treatment of ed to local culture and environment, have developed over time and that continues to develop. This knowledge is ulcers used to sustain the community and its culture, as well • the hoodia cactus by Kung Bushmen in as the biological resources necessary for the continued Africa to stave off hunger survival of the community. Since 1948, international hu- • turmeric in India for wound-healing man-rights standards have recognized the importance of protecting intellectual property. Yet, to date, intellectual • ayahuasca in the Amazon basin for sacred property (IP) rights are not adequately extended to the religious and healing purposes holders of TK. The requirements for IP rights protections • j’oublie in Cameroon and Gabon as a under current IP regimes remain largely inconsistent with sweetener the nature of TK. As a result, it is neglected and consid- ered part of the public domain with no protections or benefits for the knowledge holders, or expropriated for TK includes mental inventories of local bio- the financial gains of others, often referred to as biopiracy. logical resources, animal breeds, and local plant, This chapter presents basic IP concepts in the context of crop, and tree species. It may include such infor- TK with specific attention to identifying, classifying, and mation as which trees and plants grow well to- protecting elements of TK. The advantages and disadvan- tages of the various IP protection options are discussed, gether and which are “indicator plants” (plants and a number of case studies are presented to facilitate a that show soil salinity or are known to flower at better understanding of each option or issue. the beginning of the rains, for example). TK in- cludes practices and technologies, such as seed treatment and storage methods and tools used for 1. Introduction planting and harvesting. It also encompasses belief Traditional knowledge (TK) is information that systems that play a fundamental role in peoples’ people in a given community, based on experi- livelihoods, maintain their health, and protect ence and adaptation to a local culture and envi- and replenish the environment. TK is dynamic in ronment, have developed over time and continue nature and may include experimentation in the to develop. The knowledge is used to sustain the integration of new plant or tree species into exist- community and its culture and to maintain the ing farming systems or a traditional healer’s tests genetic resources necessary for the community’s of new plant medicines. Hansen SA and JW Van Fleet. 2007. Issues and Options for Traditional Knowledge Holders in Protecting Their Intellectual Property. In Intellectual Property Management in Health and Agricultural Innovation: A Handbook of Best Practices (eds. A Krat- tiger, RT Mahoney, L Nelsen, et al.). MIHR: Oxford, U.K., and PIPRA: Davis, U.S.A. Available online at www.ipHandbook.org. © 2007. SA Hansen and JW van Fleet. Sharing the Art of IP Management: Photocopying and distribution through the Inter- net for noncommercial purposes is permitted and encouraged. HANDBOOK OF BEST PRACTICES | 1523 HANSEN & VAN FLEET The term traditional used in describing this be detrimental to them. An important purpose of knowledge does not imply that it is old or un- recognizing private proprietary rights is to enable technical in nature, but that it is tradition based. individuals to benefit from the products of their It is traditional because it is created in a man- intellect by rewarding creativity and encouraging ner that reflects the traditions of the originating further innovation and invention. But in many communities, therefore not relating to the na- indigenous worldviews, any such property rights, ture of the knowledge itself, but to the way in if they are recognized at all, should be extended to which that knowledge is created, preserved, and the entire community. They are a means of main- disseminated.1 taining and developing group identity, as well as TK is collective in nature and is often con- group survival, rather than promoting or encour- sidered the property of the entire community, aging individual economic gain. not belonging to any single individual within the community. TK is transmitted through specific cultural and traditional information-exchange 2. Ip pRoTection optionS mechanisms—for example, orally through elders FoR Tk Holders2 or specialists (breeders, healers, and so on)— and often to only a select few people within a 2.1 Patents community. Patents provide a legal monopoly over the use, The knowledge and uses of specific plants for production, and sale of an invention, discovery, medicinal purposes (often referred to as tradition- or innovation for a specific period of time (usu- al medicine) is an important component of TK. ally about 20 years). A monopoly is the right to Once, traditional medicines were a major source exclusive control over the use, development, and of materials and information for the development financial benefits derived from a patented item. of new drugs. In the 20th century, however, new In order for an invention or innovation to be sources for pharmaceuticals led to a decline in patentable, it generally must meet three criteria: the importance of ethnobotany in drug-discovery novelty, nonobviousness, and industrial applica- programs. However, new discoveries of poten- tion (or utility). Indeed, it must meet all of these tially potent anticancer agents in plants (such as criteria, and if one can be disproved, the patent turmeric and taxol), as well as a rapidly growing cannot be approved. herbal remedies market, have revived industry Novelty refers to the “newness” of an in- interest in traditional medicinal knowledge and vention, in other words, there is no prior art. practices. As interest in traditional medicine is Prior art is the knowledge base that existed rekindled, indigenous knowledge of the cultiva- before the invention was discovered or before tion and application of genetic resources is being the invention was disclosed by filing a patent exploited at an alarming rate. application. IP (intellectual property) rights should guar- Nonobviousness refers to the presence of an antee both an individual’s and a group’s right to inventive step, that is, the invention or innova- protect and benefit from its own cultural discov- tion must not have been obvious at the time of eries, creations, and products. But Western IP re- its creation to anyone having “ordinary skill in gimes have focused on protecting and promoting the art.”3 the economic exploitation of inventions with the Industrial application, or utility, refers to the rationale that doing so promotes innovation and very reason for patent protection, that is, to pro- research. Western IP law, which is rapidly assum- mote the progress of the useful arts. For a product ing global acceptance, often unintentionally facil- or process to be useful it must, at least, work, al- itates and reinforces a process of economic exploi- though it does not have to work perfectly or even tation and cultural erosion. It is based on notions better than any competing products or processes, of individual property ownership, a concept that nor does there have to be a market for the inven- is often alien to indigenous communities and can tion (nor even a potential market). 1524 | HANDBOOK OF BEST PRACTICES CHAPTER 16.6 For several reasons, patents might not rep- implementation at a broader level could serve TK resent the most advantageous form of IP rights as a viable IP protection option. protection for TK. First, applying for a patent requires full disclosure of (making public) the 2.3 Plant variety protection/ invention or innovation. Shortly after the pat- plant breeders’ rights ent is approved, the information is placed in the Many countries protect plant varieties with the public domain by making the patent application plant variety protection certificate. This mecha- publication available to the public. In the United nism is used to protect the rights of breeders of States, a patent is made public 18 months after sexually reproducing (by seed) varieties of plants. it is approved. If the TK is considered a trade Breeders’ rights protect the commercial interests secret, a patent may not be the most appropri- of the breeder so that economic incentives exist ate IP solution. Second, the invention or inno- for continued breeding of new plant varieties, vation must be novel according to patent-office ultimately serving farmers or those who grow standards. The patent applicant must prove that the varieties. Importantly, unlike utility patents, the invention or innovation is not part of the plant variety certificates do not require the autho- current prior-art base as defined by each coun- rization of the breeder for use of the variety by try’s legal definition of novelty. In many coun- others for further breeding purposes. tries, TK may be considered, de facto, part of The criteria for a plant variety protection the prior-art base. This task can either be simple certificate are fairly uniform across countries that or somewhat difficult, but nonetheless, it must offer them. The variety must meet all of these be demonstrated. criteria: • distinct from existing, commonly known 2.2 Petty-patent models varieties Petty patents allow for protections similar to • sufficiently uniform those of patents, but for knowledge consisting • stable of a less-detailed inventive step.4 The knowledge • novel6 must still meet the novelty and industrial-ap- plication criteria.
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