Traditional Knowledge and the Patent System - Irreconcilable differences or a simple case of mistaken identity?

Abstract: Traditional knowledge (TK) is in simple terms knowledge systems held by indigenous communities, often relating to their surrounding natural environment. Through globalisation and the increased availability of this knowledge as well as the implementation of intellectual property systems in the developing world TK and its relationship with the IPR-system has become a much debated and highly complicated issue. Patents have been granted with knowledge that stems from TK, some of these patents have been challenged and accused of being examples of ''biopiracy''. The task of attempting to better adjust the patent system to TK is being undertaken for the most part by working groups attached to the Convention on Biodiversity and the World Intellectual Property Organization's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Due to amongst other things, the controversy of biopiracy much of the debate has been mired in what can be seen as post-colonial anger and guilt, it is highly politicised and often far removed from the legal issues at hand. This thesis attempts at reclaiming the issue from the political arena and approach the imperfect interaction between the two knowledge systems as a legal problem instead of a political one. The questions posed are if there is an actual need for accommodating the current patent system for TK, and if so, what measures would be justified? In chapter 2 TK is defined further and the case for and against protection is covered. It is divided up into looking at its role in aiding sustainable development, the biopiracy debate, use of TK as a means of levelling out the playing field between the North and the South and finally its role in protecting the validity of the patent system. Chapter 3 is a run through of the structure of the patent system within the European Patent Convention as well as a brief look at its history and theoretical justifications. In chapter 4 three case studies are presented&semic Turmeric, Neem and Ayhuasca. They have been chosen because they are both representative in regards to being some of the most well documented cases as well as illustrating different aspects of the problems that can arise when the patent system and TK come into contact. The cases reveal problems connected to judging the patent criteria of novelty and inventive step in relation to TK as well as the issue of the moral rights of indigenous communities in terms of protection from infringement of their religious identity. Finally, an overhanging difficulty that is shown in all cases is the problem for communities both legally and economically in challenging patents which they feel infringe upon their TK. Chapter 5 deals with possible defensive measures to adjust the system as a means of preventing occurrences such as those shown in the case studies. Three proposed solutions are studied: creating TK-databases and adjusting prior art searches, disclosure of origin within the patent applications and moral rights as an exception to patentability. Chapter 6, the analysis and the conclusion in chapter 7 suggest that TK and the patent system do not interact well but not as badly as one is brought to believe. The mistaken identity of the issue being that TK is important but so is the patent system, and the question should not be treated as only a question of adapting the patent system to TK but also of adapting TK to the patent system as I argue that the patent system in spite of its imperfections is worth keeping as strong and efficient as possible, and patents which reach the standards set by the patentability critera should be granted notwithstanding if their content originates from TK or not. The most important thing is driving innovation, especially in areas such ESTs. The case studies, with the exception of the Ayahuasca case, also show that the patents granted were in actuality neither classic cases of theft nor doing any real harm to the TK-holders even if they were incorrectly granted as they did not meet the standards of the patentability criteria. In conclusion four changes are suggested. Firstly a further expansion of TK-databases is required as well as improved routines for prior art searches. Secondly a voluntary disclosure requirement should be included into the patent system. Thirdly the moral rights of TK holders as regards the sanctity of their religious beliefs should be included into the concept of ordre public as an exception to patentability under certain circumstances. The final suggestion regards giving aid to help indigenous communties both acquire patent protection and fight incorrectly granted patents.