While, as described, TRM may be subject to a variety of IPRs, in most cases the costs of acquiring and exercising them are not only prohibitive for TRM holders because of registration fees but, because of high costs of enforcement.
For instance, the process of acquiring a patent includes drafting the patent specification and claims (a complex task that generally cannot be undertaken without expert advice), and payments for filing, examination, and actual receipt of the IPRs grant. Furthermore, in most countries maintenance fees need to be paid periodically to keep the patent in force. These expenses are far beyond the means of most local/indigenous communities and TRM healers.
Needless to say, it is only worth investing in obtaining a patent if it can be effectively used to prevent infringement. Monitoring whether the patent rights are respected is difficult, and bringing an action in court to stop infringement very costly. Of course, patents may be licensed and a licensee may bear these costs, depending, on the terms of the licensing agreement. But licensees would usually require the patent owner to defend the patent, should it be challenged on grounds of invalidity. Even if a case does go to court, a third party may well succeed in convincing the judge that its product, use or process is sufficiently different from the original traditional knowledge to constitute an invention of its own, or at least not to constitute an infringement (Dutfield, 2000, p. 15-16).
Similarly, the use of trade secrets raises complex issues of proof in a traditional context, including about possession of the relevant knowledge, its secret character and the adoption of reasonable measures to keep it confidential. Issues relating to the ‘commercial value’ of knowledge may also arise. The use of trade secret law therefore, poses questions of effective documentation and capacity to act in courts.
Comparable problems would emerge in cases where third parties falsely claimed ownership in respect of TRM. Challenging the validity of a patent, or the undue use of an indigenous symbol162 or geographical indication, also requires sound legal advice and entails significant costs.
162 See, e.g. the native people’s opposition in the U.S. to the use as trademarks of Indian symbols (Coombs, 1998, p. 186-187). A proposed amendment to the trademark law in New Zealand would prevent the registration of a trademark where its use would offend a significant part of the community, including the Maori people. http://www.ruddwatts.com/newsroom/ publications/ip/newtrademarksbill2001.asp
Finally, things are complicated further by the territorial nature of IPRs protection. While it may difficult for local/traditional communities to acquire and enforce rights in their own country, it may be actually impossible to do it internationally. Registering a patent in the U.S. may cost at least US$5.000 to US$10.000, and quite a lot more in Europe,163 where the largest markets are. In addition, in the U.S. the costs of a typical infringement suit164 are estimated to run to US$1 million to US$3 million, while they are also substantial in other developed countries.
163 The costs for the international protection of an invention are somewhere in the range of US$40.000-US$50.000, including registration and maintenance fees (Hofinger, 1996, p. 88).
164 In some countries, administrative actions are also available. For instance, post grant opposition procedures are available before the European Patent Office, which have resulted in the invalidation of roughly 30% of the opposed patents (Merges, 1999). In the U.S., re-examination can be conducted by the US Patent and Trademark Office.
Given the high barrier posed by enforcement costs and procedures, States must be called to support their local/indigenous communities in order to allow them to make an effective use of IPRs. Without such support, protection through IPRs will have minimal practical relevance. Developed countries may also support such actions as part of their development aid, by providing legal assistance to developing countries in this matter.