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    WIPO Consults On Protecting Traditional Knowledge, Genetic Resources

    Published on 19 December 2007 @ 11:24 am

    Intellectual Property Watch

    By Catherine Saez
    How best to protect traditional knowledge, traditional cultural expressions and genetic resources against misappropriation and misuse was the main theme of a recent community consultation in the form of a roundtable organised by the World Intellectual Property Organization (WIPO).

    The WIPO event on 10-12 December came in response to “the strong level of interest expressed by many national authorities and community representatives in sharing experience and developing dialogue and cooperation on practical initiatives to build capacity for appropriate protection.” The event was announced two weeks before it took place.

    WIPO said it aims to strengthen the practical capacity of holders of traditional knowledge (TK), traditional cultural expressions (TCEs, or folklore) and genetic resources (GR). It is preparing, among other things, a TK documentation toolkit, guidelines and a database for GR, and a creative heritage project.

    The informal roundtable was organised around four workshops (creative heritage, TK and GR in the patent system, TK toolkit, and “customary law”) where participants were invited to share views and experiences. Work was then reported to all participants for discussion.

    Jacob Simet, rapporteur of the creative heritage session, said that “a great part of the problem could be addressed at the institutional and community level.” He said the misappropriation of TK and TCEs is worsened by tourism, thereby creating a dilemma for communities as it provides benefits while at the same time acting as an agent of misappropriation when, for example, tourists take photographs or film indigenous communities.

    On the database project, participants on the closing day generally agreed that each country has a different level of examination and thus the database structure should be put together in a standardised and prescribed language taking into consideration local needs and focusing on the goals reflected in the recently adopted WIPO Development Agenda.

    In the current system, patent examiners use an array of databases, according V K Gupta, a panel co-convener. “A system should be set up to ease the work of patent examiners,” he said, and suggested a systematic use of metadata, which provide greater detail.

    Many participants were concerned about protection of the database, which they said should not enter the public domain, but instead should be reserved for the sole use of patent examiners at the risk of betraying the trust of contributors.

    Xuan Li of the intergovernmental South Centre asked how the database was going to protect the rights of TK holders in cases such as Chinese traditional medicine that uses very complex plant preparations with over 20 ingredients. It would be very difficult to determine novelty in a patent application involving such products, she said. Participants appeared to concur and said that patent examiners should be skilled and trained in different specialties. Li said that in the case of Chinese medicine it would be additionally difficult to examine a patent application given that China has 55 ethnic communities, each with their own preparations.

    The toolkit workshop synthesised the benefit and danger of documentation, according to participants. The issue of confidentiality in particular was put forward as the group shared their questions about whose interest lies behind documentation, who is funding it and what kind of problem would arise if the databases were linked to funders.

    Brendan Tobin, rapporteur on the TK toolkit workshop, said that “if you can’t enforce the obligation of confidentiality, you need to take this into consideration.” He also said it was important to ensure that the TK databases are, in the main, established and maintained by communities, and that ownership of management structure should, where possible, be with local communities.

    The potential danger of “catastrophic” disclosure, with the database “going wild on the Internet” also was a serious concern for the roundtable participants, with the effort to protect traditional knowledge possibly having, in this scenario, the reverse effect.

    According to WIPO’s Antony Taubman, the organisation has no initiative to establish a database but “would only ever work with existing initiatives, and would rather be a portal for access for patent examiners.” It should be a practical tool enhancing both protection and patent quality, he said.

    WIPO has been working on different initiatives to address the issue of misappropriation of TK, TCEs and GR for the last five years, Taubman said. “WIPO wants to take it to the operational level,” he said, emphasising the organisation’s wish to produce non-binding guidelines meant to reflect best practices. The first phase of the guidelines, which currently are being written, is to reach out and solicit experiences and opinions. The first draft is expected to be released early next year.

    Roundtable participants recognised a need for capacity building and introducing safeguard mechanisms to protect the database. Manuel Ruiz from the Third World Network mentioned that the Honey Bee Database, which involves grassroots innovations, is an initiative that has won the trust of the communities.

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

     

    Comments

    1. Tim Roberts says:

      To invalidate a (European, at least) patent, a disclosure must be in the public domain. Is traditional knowledge in the public domain, or not? If not, it may be re-invented (and protected)independently. Perhaps access to the database should be restricted to patent examiners, so that they alone could search it. This might be consistent with each individual entry being in the public domain. If not, to give effect to the system, many countries would have to change their patent laws.

    2. Manish Garg says:

      Sometime back, the government of India had proposed to make TK database accessible to patent examiners globally. The intention was to protect TK from being patented and thereby protecting the genetic resources of nature. If this comes, then this will add fuel to patent examiners in doing the searches more efficiently on inventions using biological material and decide on the patentability of biological material based on novelty, inventive step and utility.


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

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    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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