David Martin argues that this may be a pejorative expression:
"I use the term “Heritable Knowledge” rather than the convention “Traditional Knowledge” as it captures the dynamic, temporal, and perpetual evolution inherent in stewardship of knowledge, stories, cultural and artistic expressions, spiritual and social awareness, health care; and, ecological practices. “Traditional Knowledge” is a pejorative term that often is used to project a contrast between the industrial derogation of “developed” vs. “undeveloped” or “developing” and, as such, should be avoided. Additional, “Traditional” imposes a temporal assumption while this knowledge is constantly evolving and will continue to do so in vibrant, resilient cultures." (http://www.m-cam.com/downloads/11042008.doc)
S. Farrell, IP Handbook:
"In recent years pharmaceutical and nutraceutical companies have looked to Asia and South America in search of new treatments and compounds which can be patented and brought to the western consumer for a profit. Most of the time traditional medicinal systems as well as cultural practices are examined to see if there are any plants or compounds which might be useful as medical treatments in the west.
Recently however the Indian government, among others, has begun asking governments to revoke patents on traditional preparations and medicines that were “discovered” by various individuals and or companies. Their reasoning behind this is that these preparations have been known and used publicly in many parts of the Indian subcontinent for hundreds if not thousands of years.
The traditional medical systems of India and other parts of Asia include Auyverda, Unani, and Siddha. Each of these systems has thousands of preparations utilizing local flora and fauna to treat various ailments; ailments which are also supposedly treated by the preparations which have been patented by pharmaceutical and nutraceutical companies. For example an extract/preparation of the Himalayan plant Phyllanthus amarus has been recently patented as a treatment for HIV, while in traditional medical texts the plant is cited as being used to treat immuno-suppressive emaciating diseases. Almost the same exact use. However the patent could still be considered valid because it is not clear whether or not the extract preparation process is novel (see US Patent Application No 10/398,379). However the novelty of extraction extraction processes utilizing alcohol, water or hexane is in question That being said, too often the patenting process is not fair to everyone who has a stake in the legitimacy or illegitimacy of these patents. In all of this the Indian government is still trying to say that these preparations are not novel and should not be considered as legitimate patents by various countries in which they are registered as such.
In order to combat what they see as the usurpation of indigenous knowledge, the Indian government is creating an indigenous knowledge database, which will now be used by the European patent office to check against new claims to determine whether or not they are novel and therefore legitimate. This would help keep in check so called bio-pirates and the practice of bio-piracy. The government of India has spent over 5 million dollars in the last ten years trying to lift the patents on several traditional remedies in many countries. In addition to this the government of India is pushing the WTO to include a provision within the TRIPS agreement relating to the protection of indigenous rights and biodiversity. There are more than one hundred countries in the WTO that are supporting this initiative, however several big players including the US, Japan, and Canada, feel that more evidence and investigation is necessary before proceeding with this addition to the TRIPS agreement." (http://blog.iphandbook.org/?p=149)
The Issue of Traditional Medicine
"many important medical advances are based on traditional knowledge: Consider aspirin (originally derived from the willow tree which itself was used for pain relief), and the anti-malarial artemisinin (based on a traditional Chinese medicinal herb).
With the growing awareness of TCM in the West, and global sales of herbal medicines in 2000 alone reaching $30 billion, it is easy to see why corporations want to patent traditional medicines. Accordingly, companies such as Xiangxue are investing in the science underpinning TCM, with a view to identifying new patentable pharmaceutical leads based on compounds discovered in the natural world and used in traditional/ folk medicine.
Against this background, a major concern of NGOs and governments in recent years is protection of traditional inventive and creative activity against misappropriation by third party patenting.
There is a widespread feeling that Western corporations should not profit from traditional knowledge at the expense of the indigenous communities from which it originates. However, at present, there is no legal system in place for rewarding or even acknowledging the contribution of traditional knowledge to modern science. Recently, the World Intellectual Property Organisation (WIPO) updated its patent classification system to better account for patents relating to traditional medicine based on natural products.
However, as existing patent laws are designed to protect "new innovations", traditional medicine does not fit comfortably into most existing systems.
For example, most TCM products are difficult to define and thus cannot be described with sufficient precision to satisfy the strict requirements of international patent law.
Moreover, as traditional practices are rarely written down, it can be difficult to determine whether they are "publicly known", especially as individual national laws differ in their definition of "the public domain."
The perceived difficulties with the known legal system can lead to what is often termed "biopiracy", and is illustrated by the high-profile example of the "Neem" (Azadirachta indica) Patent cases.
Indigenous communities in India have used the seeds of the Neem tree for medicinal purposes since 5000 B.C, as evidenced by ancient Sanskrit texts. A European Patent was granted to a US company for the anti-fungal use of a product extracted from Neem seeds.
The Indian authorities fought (and eventually won) a 10-year legal battle to have the patent revoked, on the ground that the medicinal properties claimed were known in the "prior art" for thousands of years before the patent application.
As one would expect, publicly available knowledge and practices cannot be patented. However, inventive improvements to traditional medicine may be patentable: For example, other "Neem" Patents were directed to previously unheard of uses, such as the treatment of cancer.
The Neem case highlights a deficiency of patent systems: Searches for "prior art" – i.e. assessment of what is already known – are inherently fallible, particularly because they rely on printed material. To address this issue, WIPO is considering how to improve access by National Patent Offices to traditional knowledge resources.
In parallel, learning from the Neem tree case, the Indian Government is overseeing an ambitious project to collate an encyclopedia of the country's traditional medicine, known as the Traditional Knowledge Digital Library (TKDL).
The aim of the TKDL is to put Indian traditional medicine into the public domain – in particular, to bring traditional remedies to the attention of Patent Office Examiners around the world.
In addition to such "preventative" measures, some argue that "affirmative" mechanisms are essential for regulating the use of traditional knowledge by third parties and providing rewards to communities that have developed this knowledge over many years.
To this end, a number of countries have called for two additional requirements for obtaining patent protection – an indication of biological source when the invention is based on indigenous genetic material, and a demonstration of prior informed consent (PIC) – i.e. confirmation that the community consents to the third party use of their knowledge.
These requirements have already been incorporated into the patent laws of India, The Philippines and the Andean nations.
A further option might be for indigenous peoples themselves to seek protection for new uses of their traditional medicines.
Whilst the expense of patent protection is a major constraint for traditional healers, alternative forms of protection are being considered. For example, trade marks or geographical indications could be used to identify traditional medicines from particular regions or communities.
Some argue, however, that 'Western' forms of protection may be inherently incompatible with the philosophy of traditional communities.
What is evident is that no straightforward, 'one size fits all' answer exists to the question of how best to protect traditional medicine. Further research and debate will no doubt ensue to try to find a solution that accommodates the conflicting needs of traditional communities and modern science." (http://www.businessweekly.co.uk/2008013031368/life-sciences/biotech-2008-ip-rights-and-traditional-medicine-a-procrustes%E2%80%99-bed.html)
Using contract rather than property law
"Both property (tangible and intangible), per se, and heritable knowledge can only derive economic value through contract law (in the form of transfers, licenses, leases, etc.). Therefore, it is contract, not property, law that is the engine of economic engagement. Ironically, neither WIPO nor WTO is necessary to promulgate new laws as the countries in the region already have relatively well defined contract law provisions and, in most cases, a relatively effective corpus of jurisprudence in the area of contracts. In short, the legal framework to protect both foreign IP&R and local communal heritable rights requires no substantive alteration in basic law. Further, under model legal frameworks already in place, existing conventions and laws already provide the basis for heritable knowledge and the perpetuation of “Traditional Knowledge” consultations is a smoke-screen as neither WTO nor TRIPS actually binds explicit, equitable enforcement of TK on member states at present." (http://www.m-cam.com/downloads/11042008.doc)
- Bhanumatu Natarajan: Biodiversity and traditional knowledge- Perspectives for a Gift economy
- Communal Innovation Trust
- Blog on traditional knowledge: http://en.wordpress.com/tag/traditional-knowledge/