While much of the debate is focussed on identifying suitable ways to increase protection for traditional (medicinal) knowledge, there should probably be equal emphasis on the importance of the intellectual commons or public domain, and on the advantages of disclosure of knowledge. Some experts and stakeholders consider that much of the current discussion, which stresses the appropriation and privatization of knowledge, in fact undervalues the public domain. There are a number of divergent - but not conflicting- views underlying this position, such as:
• some holders of traditional knowledge reject the idea of anyone having ownership rights over (traditional) knowledge and/or over the related biological resources;
• other stakeholders are mainly concerned with avoiding biopiracy and -especially- with avoiding the misappropriation of (traditional) knowledge;
• there are those who consider that the capacity for further development of traditional medicine is generally insufficient in the (developing) countries where most of this knowledge originates; therefore, they feel, its protection would mainly benefit foreigners (and may thus indirectly encourage biopiracy);
• publication of traditional medicinal knowledge is a high priority for projects aimed at promoting traditional medicine and making it more widely available as a source of health care;
• last, but certainly not least, protection of traditional medicine is likely to lead to an increase of its costs and/or to restrictions on its use or diffusion26, which would reduce access, notably of those who are most dependent on traditional medicine: the poor.
26 Patent owners normally have the right to prevent commercialization and use of the patented product.
Once knowledge or an invention is disclosed, it no longer is considered new; therefore, it no longer can be patented. Disclosure destroys novelty and, thus, destroys patentability. Disclosure can in principle take place through publication, or through use of the invention (if an invention is used, it means it is known to the public).
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Box 13 Disclosure through use
A notorious problem relates to the standards of novelty in the US. Under US law, novelty is destroyed if an invention has been disclosed (i) through publication, or (ii) through use in the US.
Use outside the US does not destroy novelty; this is why patents have been granted in the US on traditional knowledge and genetic materials used for centuries in developing countries.
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Publication
Publication of traditional medicinal knowledge -apart from being a way to promote the use of a particular remedy or cure- can therefore be used to prevent unjustified protection; a strategy of systematic disclosure is an effective weapon against misappropriation. To optimize the impact of publications on the prevention of the granting of patents on public domain knowledge, they should be included in the searchable prior art, for instance via their inclusion in IPR information, catalogues and/or through the development of (electronic) databases, accessible to patent offices.
India is trying to develop a traditional knowledge digital library, in order to make traditional knowledge which is already in the public domain easily accessible and searchable27.
27 WIPO is contemplating launching a similar initiative at the international level.
Seen from a different angle, publication erects an important barrier for IPR protection, notably patent protection, of contemporary and/or undisclosed traditional and indigenous knowledge. This highlights the need to distinguish carefully between knowledge which is already in the public domain (i.e. which is widely known) and knowledge which is not. Disclosure of community or individual knowledge should be the choice of those who hold the knowledge, not a 'fait accompli', with which they are confronted after it has already taken place.
Moreover, if databases of traditional (medicinal) knowledge are developed, they should be made accessible to local communities, preferably in the local language(s). There are multiple reasons for this, which include the fact that it is only fair to give back to local communities what was theirs in the first place, and that it would facilitate promotion and diffusion of this knowledge and thereby, ultimately, increase access to traditional medicine(s). It would also enable communities or healers who do want to protect their innovations to search what is already known, so that they can avoid applying for patents on inventions which are already in the public domain.
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Box 14 A grassroots innovation network
An interesting initiative is the Honey Bee Network28, which originates in Gujarat, India. The network aims to document and disseminate 'grassroots' innovations by local farmers, pastoralists, artisans, healers and others. Through a multitude of strategies, including surveys, competitions, workshops, fairs, dissertations and surveys of old/local language literature, the network has developed a database containing over 10,000 'local' innovations. These are disseminated in several languages (including local languages) throughout 75 countries via the Honey Bee Newsletter. The network and organizations affiliated with it also try to further develop these innovations and to provide incentives and rewards, e.g. by assisting with patent applications and venture capital, by invitations to lecture and by publicly honoring inventors.
28 More information can be found at: http://www.sristi.org or at: http://csf.colorado.edu/sristi
Among its successes are the dissemination of knowledge about several herbal veterinary remedies and innovative agricultural tools, and the patenting -followed by licensing- of a chart that facilitates the spreading of manure on a field.
The network will disseminate innovations only after due consent of the -named- inventors. Moreover, by acting as a registry, the network's database -in which all innovations are entered with reference to their inventors- also provides some initial protection for those innovators who seek protection for their ideas, pending further development and/or patent application. Thus, the network effectively combines protection and publication strategies.
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