Protection of Traditional Medical Knowledge in the Patent System: Is There Room?

Abstract: Traditional knowledge (TK) is a vital component of the lives and wellbeing of many traditional communities or groups worldwide. The value of TK extends to numerous aspects of life including the health sector. In Africa, up to 80% of the population use traditional medicine or employ medicinal use of indigenous plants. Although TK in the medicinal use of plants (Traditional Medical Knowledge – TMK)  is applied extensively in the traditional community set up, it is evident that the use of adaptations of traditional medicines is becoming ever popular. TMK has therefore become the basis of much research, development and technological advancement in developing conventional drugs in the pharmaceutical industry which are eligible for patenting whose active component or key healing property is based on traditional medicine. Patents are obtained by researchers and companies for inventions based on TMK and this is often done without any acknowledgement or compensation flowing back to the traditional communities. Significant amounts of money are generated from these inventions. TMK is knowledge worthy of protection, however the pertinent question which this thesis seeks to explore is whether the patent system is best suited to protect African TMK or whether protection should be sought outside the traditional patent system. It further seeks to explore the operation and scope of the protection offered by the Swakopmund Protocol of the African Regional Intellectual Property Organization and to peer into the operation of the Protocol at a national level using the Republic of Zambia as a case study.