Researcher Proposes System To Promote And Protect TK In China

By Catherine Saez
Although China is the biggest traditional knowledge holder in the world and has been patenting its traditional medicine knowledge since 1993, its existing patent regime does not appear to be able to protect traditional knowledge or its holders, says Xuan Li, research fellow at the World Trade Institute in Bern.

In order to better understand the issue, a field survey was conducted in Southeast Guizhou, China, from an upstream/downstream innovation chain perspective, and focusing on traditional medicinal knowledge and folklore, Li said in a 14 December presentation of her ongoing research.

In her view, in order to reduce search cost, a two-layer traditional knowledge (TK) registry seems necessary. The first layer would facilitate the identification of TK holders while the second layer would focus on the selection of high-quality traditional knowledge. For the first layer of registry, no legal rights would be conferred and no threshold of eligibility to register would be established, she said. For the second layer of registry, eligibility criteria would be compulsory.

Li proposed an institutional innovation system she called an “optimal sui generis system to promote TK innovation.” The proposed regulatory TK regime is twofold, she said, targeting production failure and transaction cost, based on the nature of TK innovation.

Misappropriation of traditional knowledge, or biopiracy, is a problem faced by traditional knowledge holders even within the Chinese border, making them wary of the traditional chain of traditional knowledge innovation such as a TK-based new drug, with no collaboration between the knowledge holders, research institutes and pharmaceutical firms, she said.

The knowledge often is inherited over a string of 10 or more generations, most of the time orally since 53 out of the 55 Chinese minorities do not have written language, and is jealously kept secret. This leads to inevitable market failure, she said. While traditional knowledge holders do not have the financial means to face the high cost of research, 77 percent of them wish to collaborate in a traditional knowledge innovation process, said Li.

The present institutional innovation system is unable to prevent information leakage and thus is unable to safeguard traditional knowledge holders’ benefits. Based on the field study, Li proposed a new scheme that would allow the creation of six “TIP” rights (“traditional intellectual property”) such as a right to exclusivity, a right of benefit-sharing or a right of transferability. A distinguishing feature of traditional knowledge is that it is the primary input on which the whole product development process is based. Its contribution being far more influential than that of the incremental follow-on innovations, the TK holder should receive larger benefits than the follow-on innovators, Li said. It would thus be necessary that the downstream industry share the patent right with upstream TK holders.

She also advised establishing an intermediary between the knowledge holder and the users, and that this intermediary be supervised by a second intermediary to ensure the safekeeping of the knowledge.

The seminar was held by the South Centre in its Innovation and Access to Knowledge Programme. The seminar series is presented on a quarterly basis and aims to provide a forum where cutting-edge research and ideas on innovation, access to knowledge and intellectual property, from a development perspective, are presented and debated.

Catherine Saez may be reached at csaez@ip-watch.ch.