(2002; 131 pages)
I. INTELLECTUAL PROPERTY AND TRM
IPRs are granted to individuals or juridical persons who claim to be inventors or creators. Such rights may apply to a broad range of creative expressions, designs, products and processes, provided that certain requirements and conditions are met. Thus, in the case of patents, the claimed invention must be novel (that is, not publicly available or disclosed), convey an inventive activity and, in most jurisdictions, be capable of industrial application. Ornamental designs may be protected if original. Trade secrets law protects knowledge of actual or potential commercial value.
There is, a priori, no reason why such categories of rights may not apply to various expressions of traditional knowledge, including TRM. However, there are several characteristics of TRM that create barriers to protection through the use of existing forms of IPRs.
This section briefly presents some of the features of TRM that may determine the extent to which patents and other IPRs can be applied to its various expressions.21 The discussion in this section does not address the question of whether IPRs can or should be applied to TRM, but rather highlights peculiar characteristics of TRM that may be relevant to the potential application of such rights. Section III examines the use of patents and (to a lesser extent) other IPRs to protect TRM.
21 With regard to enforcement issues, see section IV. f below.