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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

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