If however exclusive rights over traditional medicine(s) are sought, it becomes obvious that most forms of IPR cannot easily be used in this context, for the reasons outlined below (the list is not exhaustive):
For an invention to be patentable, it has to meet three criteria: novelty, inventiveness (or non-obviousness) and industrial applicability (or utility). Moreover, most patent laws require that the inventor(s) should be identified.
Knowledge about the preparation and use of traditional medicines is usually transferred from one generation to another; generally, no new chemical entities have been developed, and the processes used during their preparation are well-known.
Therefore neither the product nor the process is considered novel, and no patents can be obtained. In addition, often it may not be possible to identify the actual inventor.
Box 6 Joint inventorship
In most intellectual property laws, the concept of 'joint inventors' exists, but in order to claim joint inventorship, each of the inventors must have contributed to the inventive thought and to the final result. This creates difficulties for traditional healers and communities, who may not, individually, have played a role in developing the invention, and/or may find it difficult to demonstrate their contribution.
Moreover, to obtain a patent, an indigenous group or traditional healer may have to demonstrate that the invention is novel. This may be difficult and would probably be incompatible with indigenous peoples' practice of sharing their knowledge.
Other important, practical hurdles are related to the process of acquiring a patent: in order to provide real protection, a patent application needs to be written in scientific-legal language, which may require obtaining the services of a patent lawyer; this, in combination with the (high) costs of filing for a patent, may make patents prohibitively expensive.
Finally, one of the biggest problems for indigenous communities or healers, once they have obtained a patent, is related to the protection of their patent against infringement. A community or healer may not be aware of infringement, but even if they are, legal action to defend the patent in court is usually expensive and may well be beyond their means. And if a case would go to court, an infringing company -with more financial resources and far better access to lawyers- may well succeed in convincing the court that its product, use or process is sufficiently different from the original to constitute an invention of its own, or at least not to constitute an infringement.
The main limitation of copyrights, when used with the objective of trying to protect traditional medicine, is the fact that copyrights only protect the expression of an idea, but not the idea itself. In other words, copyrights can prevent unauthorized copying of a text containing information about traditional medicine, but it cannot prevent the use of the knowledge disclosed in that text.
In addition, copyrights, like patents, are normally assigned to (named) individuals, which may render them inappropriate for use in the context of traditional knowledge, where it is often not possible to identify the original author; moreover, indigenous people and local communities may perceive their knowledge, and the texts in which it is contained, as their collective heritage; therefore they may desire protection of their collective rights, as opposed to assigning those rights to an individual.
Trademarks can be used to prevent misleading customers with regard to the origin of a product. At the same time, a trademark protects companies or entrepreneurs which invest in quality, since they cannot easily have their products confused with similar products from other companies. Thus, trademarks protect suppliers' reputation or goodwill. Trademarks could probably be used by communities to distinguish their products as authentic, as really made in or by that community.
But communities may lack the resources to promote their trademark in order to make it widely known, and, more importantly, trademarks cannot be used to prevent copying of the product itself by third parties, nor can they be used to prevent using a product as a basis for further inventions.
A 'geographical indication' refers to the use of the name of a place or region to describe a product; usually such a name identifies both the product's origin and its characteristics. Examples are Scotch Whisky and Bordeaux Wines. Using a geographical indication for a product made elsewhere and/or not having those characteristics, is therefore misleading, and the TRIPS Agreement states that countries have to prevent misuse of geographical indications. Furthermore, TRIPS provides for additional protection for geographical indications for wines and spirits.
Geographical indications could offer some protection to certain biological assets and to products based on traditional knowledge -including traditional medicinal knowledge- if they are known as originating from a specific geographical region. This would however require appropriate national legislation to be enacted. Nevertheless, like trademarks and copyrights, geographical indications do not protect the knowledge or know-how per se, nor can they prevent others from imitating the product - they can only protect against unjustified claims that the product originates from a certain (geographical) area.
Plant variety protection:
While TRIPS makes it obligatory to provide protection for plant varieties (e.g. by means of plant breeders' rights protection), it allows considerable flexibility with regard to the mechanism for such protection: countries may opt for patent protection or for another type of protection (i.e. sui generis protection14). The UPOV Convention, an international treaty on plant varieties, requires that new plant varieties meet three criteria: distinctness, uniformity (or homogeneity) and stability. Plant varieties cultivated by local communities usually are genetically diversified; therefore they normally do not qualify for such protection.
14 For more information on sui generis protection, see paragraph 6.2.2; see also the example in paragraph 8.2.