Most experts agree on the limitations of the above mentioned forms of intellectual property rights for the protection of traditional medicine(s) and traditional medicinal knowledge15. Opinions diverge however on the potential usefulness of certain other forms of intellectual property rights, notably trade secrets and petty patents.
15 Some forms of IPR protection, such as industrial design , are not applicable in the context of traditional medicine(s) and are not discussed here.
Petty patents (or utility models) differ from conventional patents, since the requirements for 'non-obviousness' are less stringent or absent. Petty patents are easier to obtain -often there is only a system of registration instead of an examination, as in case of patents- but the period of protection is shorter. Petty patents vary considerably between countries, since they are not standardized by international agreements or conventions. It is likely that part of the traditional (medicinal) know-how and knowledge would meet the requirements for petty patents, and some experts and organizations consider that petty patents could be useful to protect such knowledge.
Others argue that the system, while requiring disclosure of the knowledge, offers too little protection in return.
Box 7 Kenya's petty patent law
Probably the only country with a petty patent system that specifically refers to herbal formulations as a possible subject of protection, is Kenya. Kenya has had that law in place for over ten years, but so far there have been no applications for the protection of herbal medicines or formulations. The reasons for this are not known with certainty, but could be related to lack of awareness about this law; alternatively it may imply that the protection offered is felt to be either insufficient or unnecessary. Healers' long-standing habits of secrecy, and past experiences of "being given a raw deal" by the Government and/or research institutions, may have contributed to this non-use of legal options for protection.
However, a relatively recent information campaign has resulted in several applications for patents, for traditional medicinal knowledge, though not for petty patents.
A trade secret refers to information which is secret, and has commercial value because it is secret. Under TRIPS, trade secrets or "undisclosed information" are protected, under the discipline of unfair competition, against dishonest commercial practices. There are no requirements regarding novelty or inventiveness, and the owners of a trade secret have no exclusive rights over their information; they are only protected against their information being obtained by third parties in a dishonest way. This means that a trade secret offers no protection against reverse engineering16 or against independent discovery or development of the same information.
16 Reverse engineering refers to the development of technologies based on the evaluation of competitors' processes or products.
But a trade secret is easily obtained: the only 'condition' to qualify for a trade secret, is that measures must have been taken to keep the knowledge or information secret; besides, protection lasts as long as the information concerned is actually kept secret.
Trade secrets require no application, examination or registration; moreover, the concept of keeping something secret is familiar to people from virtually all societies. At least in theory, a considerable amount of indigenous and traditional knowledge, whether held by an individual or a community, could be protected as trade secret. By exchanging information with outsiders on the basis of agreements or contracts that ensure confidentiality as well as sharing of benefits, trade secret law could be used to the benefit of a community. Trade secret law may also increase the community's control over the use of its knowledge; if third parties obtain secret information by illicit means, legal action might be undertaken on the basis of trade secret laws.
But while trade secrets have obvious advantages, and seem to be valuable for the protection of traditional medicinal knowledge, they cannot be relied on when a traditional medicine is developed commercially, since -for public health reasons-authorities will require disclosure of the medicine's composition as a condition for marketing authorization.
Box 8 Trade secrets and traditional knowledge in Ecuador
In an experimental project in Ecuador, the concept of using trade secrets to protect traditional knowledge is being developed and tested in a very organized way. The project, called "Transforming traditional knowledge into trade secrets", is run by an NGO Ecociencia (or eco-science) and aims to enable traditional communities to benefit from bioprospecting through effective trade secret protection of their knowledge. Knowledge from different ethnic groups wishing to participate in the project is being catalogued and deposited in a restricted access database, in which each community or group has its own file. Checks are made to verify whether different groups or communities have the same knowledge; if so, (future) benefits will be shared among all those groups sharing the same knowledge. Checks are also made to see whether each item of knowledge is not already in the public domain, by comparing it with the Napralert database, which is probably the most comprehensive database of publications relating to plants and ethnobiological knowledge. If the information is not in the Napralert database, it is assumed that the knowledge is indeed undisclosed, and presents an opportunity for a contract or Material Transfer Agreement with an interested party (e.g. a company).
So far, there are around 8,000 entries in the database, 40% of which had already been published. Therefore, 60% of the entries can be treated as trade secrets. Three companies, interested in of accessing the database for a fee, have reportedly approached Ecociencia.
A potential problem in this particular project is that the parties to the contract will be the interested company and the Government; the Government is required to share the benefits with the communities concerned, thus its willingness to actually do so will largely determine the success of the project.