Patenting Traditional Knowledge

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From http://www.scidev.net/dossiers/index.cfm?fuseaction=policybrief&policy=40&section=172&dossier=8:


"In principle, application of intellectual property rights to biological resources should not be exploitative, as anyone has the right to apply for — and enjoy the fruits of — an invention based on a biological discovery. In practice, however, patent rules tend to favour corporations rather than indigenous communities. A native healer, for example, may have developed a therapeutic plant extract or herbal formulation. But acquiring a patent for it would be extremely difficult, first because applications usually require inventions to be described in technical language, and secondly because the cost of applying for a patent is likely to be prohibitive.

At the same time, while most TK cannot be patented due to lack of novelty, some researchers argue that they have added an 'inventive step' that makes their version of a product patentable. Such arguments are frequently accepted as legitimate by patent offices. For example, the pharmaceutical giant Pfizer has obtained a licence to manufacture the anti-obesity drug P57 — the active ingredient of the Hoodia cactus — originally patented by the South African Council for Scientific and Industrial Research (CSIR). In March 2002 — after threatened legal action — the CSIR reached a preliminary agreement to share any benefits arising from the commercialisation of P57 with San bushmen, who claim they have been using the cactus to stave off hunger for thousands of years. [3]

Challenges to patents on TK have been successful in the past. For example, in May 2000, the European Patent Office revoked a patent covering the fungicidal properties of neem tree seeds due to the absence of an inventive step. And a US patent awarded in 1995 to the University of Mississippi for the use of turmeric powder in wound healing — a property well-known in India — was revoked following a legal challenge by the Indian government.

Ironically, the challenge to the turmeric patent would not have succeeded if it had relied on the argument that the 'invention' was common knowledge in India, since US patent rules do not recognise foreign undocumented knowledge as 'prior art' if it is not also known in the United States. It was only when the Indian government provided written proof (including an ancient Sanskrit text) that the patent was revoked due to lack of novelty.

Rules on the eligibility of 'novel' biological material for patent protection are quite demanding. Usually it is not sufficient simply to describe how a plant compound exerts a therapeutic effect, or even what this compound is. Meeting requirements of 'novelty' and 'inventive step' — or 'non-obviousness' in the United States — means that the applicant usually needs to produce at least a synthetic version of the compound or a purified extract. On these grounds, many scientists deny most — if not all — allegations of biopiracy, arguing that the patent is intended to reward the extra work necessary to produce a patentable invention from a biological resource, not the initial discovery of the resource itself.

Critics, however, challenge this argument by claiming that the most creative achievement was frequently the initial discovery of the useful characteristic of the resource by indigenous community members, as well as their development of techniques and procedures to apply it. The subsequent isolation and elucidation of the active compound by laboratory scientists, they argue, can be relatively routine tasks. In addition, they point out that some national patent offices do not conduct thorough examinations of patent applications. Consequently, patents that do not describe genuine inventions are sometimes granted mistakenly." (http://www.scidev.net/dossiers/index.cfm?fuseaction=policybrief&policy=40&section=172&dossier=8)

More Information

See our entries on Bioprospecting and Biopiracy

Report: The Proposed WIPO Framework on Traditional Knowledge: Does it meet Indigenous People’s demands