Collision Course: IP Rights and Traditional Knowledge
Copyright 2005, Douglas Kalish. All rights reserved. Traditional Knowledge
• Local, unique to a given culture or society
• Contrasts with the international knowledge system
generated by universities, research institutions and private firms
• Basis for local-level decision making in agriculture,
health care, food preparation, education, natural-resource management, and a host of other activities in rural communities
Copyright 2005, Douglas Kalish. All rights reserved. TK Characteristics
Copyright 2005, Douglas Kalish. All rights reserved. TK-Sharing to the Developing World
• treatment of cattle ticks by the Fulani using Tephrosia plants
• soil and land classifications in Nigeria
• water catching stone bunds in Burkina Faso
• construction of buildings with natural “air conditioning” in the
• Kpelle artisans' steel making technology in Liberia
• Agroforestry systems emulating the natural climax vegetation on the Kilimanjaro
• settlement for land disputes between farmers and nomads in Togo
• communal use and individual allocation of land by the Washambaa in Tanzania
• local healers’ role in post-conflict resolution in Mozambique
Copyright 2005, Douglas Kalish. All rights reserved. TK-Sharing to the Developed World
Copyright 2005, Douglas Kalish. All rights reserved. Why Protect Traditional Knowledge?
• Preservation of traditional practices
Copyright 2005, Douglas Kalish. All rights reserved. Protections Under Existing IP Law
Copyright 2005, Douglas Kalish. All rights reserved. Do Intellectual Property Rights Help or Harm Developing Countries?
• Helps
– Encourages domestic industry – Boosts foreign investment – Improves access to new technologies
• Harms
– Allows multinationals to establish monopolies – Drives out local competition – Forces up prices of seeds, software, drugs, etc. – Interferes with local practices
Copyright 2005, Douglas Kalish. All rights reserved. The Fable of the Shaman
Copyright 2005, Douglas Kalish. All rights reserved.
http://www.shamansoftheamazon.com/2snakes.jpg
Questions
• Do the visitors’ activities violate the
• Does the shaman have an interest in the
Copyright 2005, Douglas Kalish. All rights reserved. Obstacles to Claiming Protection under Existing Law?
Copyright 2005, Douglas Kalish. All rights reserved. TRIPS vs CBD Convention on Biological Diversity (1992)
– Biological resources belong to the sovereign states, not humanity
– Requires members states to respect, preserve, and maintain
knowledge, innovations and practices of indigenous and local communities
Trade Related Aspects of Intellectual Property (1994)
– Requires member states to grant patent protection to genetic
resources and plants, and in general to promote a ‘US-style’ of IP standards
– Alternatively, to protect under sui generis scheme, for example
precluding patenting of TK in their country
Copyright 2005, Douglas Kalish. All rights reserved. The Problems of Sui Generis Systems
• Definition of the subject matter of protection
Copyright 2005, Douglas Kalish. All rights reserved. The Challenge
• Patents on biological material prevent the free exchange of traditional knowledge and products derived from that knowledge – fundamental to TK systems and economies
• Many sui generis systems recognize oral tradition or traditional uses as prior art to preclude patent
• The US doesn’t recognize any non-tangible prior art
• Under the Patent Cooperation Treaty, one patent application can result in protection in over 100 countries
– Patent examiners don’t have access to local knowledge
– Somebody may patent a product derived from local knowledge that has been in your country for years (or centuries).
Copyright 2005, Douglas Kalish. All rights reserved. Position of the Developing World
• TRIPS provides for appropriation of genetic resources by private parties that is inconsistent with the sovereign rights of countries over their resources granted by the CBD
– By requiring patents on plants and genetic resources
• TRIPS obligation to provide patent protection for micro- organisms could result in patenting of genetic materials in their natural state:
– Criteria for patentability: novelty, inventive step (non- obvious), industrial applicability (usefulness)
– Human intervention required for genetic resources – but is isolation and purification non-obvious?
• Therefore, TRIPS should be amended to preclude patents on life-forms and parts
Copyright 2005, Douglas Kalish. All rights reserved. The Argument Evolves: ‘Country of Origin’ and ‘Informed Consent’
• Examining patents for violations of inventive steps and sui generis protection is a burden and expensive
• Proposal: Amend TRIPS to require patent applicants to disclose
– Origin of genetic resources used in the invention – Related traditional knowledge – Evidence of informed consent of the owner of the resource – Evidence of fair and equitable benefit sharing
• Counterproposal: Sui generis schemes can include requirement for contracts granting access to genetic resources
– Terms and condition for access – Joint R&D and technology transfer – Criminal and civil remedies
Copyright 2005, Douglas Kalish. All rights reserved. The Developed Nations Dig In…
• Disclosure requirement not consistent with the TRIPS Agreement:
– Existing disclosure rules are directly related to determining whether an invention meets the standards of patentability
– contrary to Article 62.1 of the Agreement which only provides for "reasonable procedures and formalities“
– might also conflict with Article 27.1 which provides for non- discrimination in patent availability between fields of technology.
– would modify the balance of rights and obligations found in the TRIPS Agreement Requirement goes beyond the CBD itself, in that the CBD leaves it to each country to establish its own system for controlling access to genetic resources and benefit sharing
Copyright 2005, Douglas Kalish. All rights reserved. Traditional Knowledge Databases
• Examples:
– http://www.wipo.int/eng/meetings/2002/igc/pdf/grtkfi c3_6a.pdf
• Controversies
– Access only to patent examiners? – Informed consent of the donors – TK is irrelevant or harmful outside of founding community, culture, or context
– Attempts to document, record and transfer TK will disempower indigenous populations
– Enables biopiracy
• Technological Challenges
Copyright 2005, Douglas Kalish. All rights reserved. Resources and References World Bank Development Gateway on Indigenous Knowledge SciDev.net Intellectual Property Dossier (Nature and Science mags) World Intellectual Property Organization Convention on Biological Diversity WIPO Index of Online Traditional Knowledge Databases
Copyright 2005, Douglas Kalish. All rights reserved. Collision Course: IP Rights and Traditional Knowledge
Copyright 2005, Douglas Kalish. All rights reserved.
Dr. P. G. Seethalakshmi , M.Sc., M.Phil., Ph.D., Principal, A.P.C. Mahalaxmi College for Women, Thoothukudi – 628002 ACADEMIC QUALIFICATIONS: PH.D. THESIS TITLE: Synthesis and Charecterization of co-crystals of caffeine, DABCO, 4,4’-bipyridine and stien with some organic acidic compounds EXPERIENCE: Teaching Experience Administrative Experience : Head of
Subscriber access provided by RENSSELAER POLYTECH INST Chemical Response of Lakes in the Adirondack Region of New York to Declines in Acidic Deposition Charles T. Driscoll, Kimberley M. Driscoll, Karen M. Roy, and Myron J. Mitchell Environ. Sci. Technol. , 2003 , 37 (10), 2036-2042• DOI: 10.1021/es020924h • Publication Date (Web): 11 April 2003 Downloaded from http://pubs.acs.o