Powerpoint presentation

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.

Source: http://www.dkalish.com/images/Indigenous_Knowledge_Michigan_2005_Final.pdf