Mehnaz Ajmal
mehnaz@sdpi.org
The current literature on Intellectual Property Rights, presents two approaches used in the world to protect traditional knowledge. One is positive approach and the other is defensive approach.
The positive approaches of protecting Traditional Knowledge talk about the systems in any country or region, either established by themselves or adopted from other countries’ model. This approach requires sound technical capability as well as commitment by the countries. As this is a new area, therefore, sparse work has been carried out so far. Many have developed and proposed the systems or trial but there is no concrete model. On the other hand those who are the allies of defensive approaches talk about the rights of countries against the monopoly of the multinationals in exploiting traditional knowledge.
Supporting the defensive approach to protect traditional knowledge, in this article we present the concept of disclosure of origin of genetic resources, associated traditional knowledge, and the data-base compilation of traditional knowledge.
Disclosure of Origin
The disclosure of origin postulation lays out a fair and equitable benefit-sharing related to genetic resources and traditional knowledge as required by the Convention on Biological Diversity. The proposal related to disclosure of origin has three forms, i.e., weak, medium and strong:
The compliance or incompatibility of the disclosure of origin with TRIPS agreement depends upon the intensity of the three forms. The weak form does not put any compulsion on the contracting party or country, while the medium form can question the invention of the genetic resource and traditional knowledge. The strong form leads towards conflict if the patent application can be rejected on the basis of absence of any requirement or compulsion on the submission of the documents and linking it with the other requirements. Some people are of the view that such requirements are a violation of TRIPS agreement, but in actual fact these requirements require the revision of TRIPS agreement according to the needs of the countries. Alternatively, these requirements could be introduced outside of the search and examination process, as administrative measures.
The medium from that makes the disclosure of origin mandatory could operate quite well for health issues. For instance, in the pharmaceutical industry it is easy to find the source of the single compound used to prepare a new drug for a disease, but it is very difficult in plant varieties, which can be patented in some countries. The genetic material may come out of different sources, some of which may no longer be identifiable because of lack of documentation and the length of time between its’ acquisition and its’ use in breeding programs. There may be certain other objectionable or unclear reasons, e.g., the different sources of genetic material; the genetic material produced through conventional breeding methods; unorganized farming communities; partially developed farming systems; and identification of indigenous communities and their truthfulness.
Keeping in view the above facts and ambiguities, careful policies for development and their practical implementation are the need of the hour.
Inventories and Database on Traditional Knowledge
The inventories and database on traditional knowledge in many countries, like India, are strongly promoted. The main aim is to make available information not only to patent examiners but also disclose it to the public domain. But the usefulness of these databases is open to discussion, depending upon the grant of controversial patent, chemical constitution of the genetic resources of different areas, difference between the information of the new invention and the traditional knowledge mentioned in the databank or inventory of any specific area. Bio-piracy is the most dangerous threat to these inventoried databanks.
In the context of availability of information, national and regional laws vary with respect to how information or material in the public domain should be presented in order that it constitutes novelty defeating prior art, because due to the lack of novelty, patents on isolated compounds obtained from medicinal plants can be challenged.
Recommendations
Conclusion
In the light of approaches for protecting traditional knowledge mentioned above, there is a need to develop mechanisms to protect the rights of holders of traditional knowledge. The mechanisms devised must be effective at all levels especially at the local/domestic level. This will ensure, protection of traditional knowledge through registers and data banks to avoid their misuse. Moreover the national authorities should provide the certification of origin, that the source of origin is disclosed and the prior informed consent of the stakeholders has been taken for the commercial utilization of traditional knowledge .
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