- Traditional Medicine > Traditional, Complementary and Herbal Medicine
- Public Health, Innovation, Intellectual Property and Trade > Intellectual Property (IP) and Trade
(2001; 88 pages)
6.2.2 Design 'sui generis' law
It is important to realize that TRIPS provides for minimum standards, therefore it is allowed to expand protection beyond the TRIPS requirements; this may include expanding protection to additional subject matters, such as for example traditional knowledge. Furthermore, while the TRIPS Agreement refers to sui generis protection in the context of PVP, it does not limit this kind of unique protection to plant varieties. The development of sui generis protection for traditional medicine therefore seems a realistic option. If contemplated, such a sui generis system should probably explicitly provide for collective ownership of intellectual property rights.
Sui generis systems have the important advantage of being flexible; they are specially designed in order to achieve a certain purpose in a particular context, and no mandatory international rules or standards -which may be at odds with national objectives- exist. This implies that in order to develop an effective sui generis system of protection, it should be clear from the outset what its objectives are; these objectives should probably differ from those for protecting 'modern' know-how. Maybe the main aim should not be to provide exclusive rights for the exploitation of traditional knowledge, but to establish linkages between commercial, conservational and developmental goals, and to formalize, and -thus- reinforce, the (moral) rights of the holders over their knowledge. Moreover, it is important that the intended beneficiaries are involved in designing the system.