Panelists Predict Future International IP Protection Of Traditional Knowledge

By Tove Iren S. Gerhardsen
National intellectual property protection regimes for traditional knowledge in Peru and China were seen as somewhat effective by panelists at a side-event to a World Intellectual Property Organization meeting this week, but the general message was that there still is need for an international system. Speakers also predicted that new regimes in this area, as well as changes to existing trade law, will happen in the future.

The 9 July South Centre event on “Towards an international sui generis regime for the protection of traditional knowledge” was held alongside the 3-12 July meeting of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) (IPW, WIPO, 9 July 2007).

Thomas Cottier, managing director of the Bern-based World Trade Institute, said he was “quite sure” that the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) would be revised in the future to regulate biotechnology.

David Vivas Eugui, project manager for intellectual property, technology and services at the International Centre for Trade and Sustainable Development, said that “we are really getting there” in terms of moving towards an international solution for traditional knowledge, but noted that he does not necessarily see a real will to advance everywhere.

Vivas emphasised, however, that “it is time to choose” in which forum the issue should be pushed, as it is on the table at WTO, WIPO, and the Convention on Biological Diversity, among others. He said at the national level, countries are testing and just starting to implement IP systems for traditional knowledge (TK).

Vivas talked about what he termed essential elements in a WIPO draft document (WIPO/GRTKF/IC/11/5/c) being discussed this week. In the area of definition and subject matter, he listed: Knowledge resulting in a traditional context and part of traditional knowledge systems; embodied or codified; passed through generations; not limited to technical field but also with a sense of a ‘practical use’; and with access, acquisition, and use of knowledge by third parties.

Also, the “main positive rights” in WIPO’s draft are “fair and equitable benefit sharing/prior informed consent/some moral rights (identification of the traditional originator),” Vivas said in his presentation.

Cottier predicted the future evolution of a concept of “traditional IP rights (TIP).” He said it would be triggered by unfair competition, as this was how IP in general evolved, and it would “help rebalance the overall IP system.”

Cottier said IP is always about protecting information, and said protecting TK is “about empoweredness” and protection for the TK holders against governments as well as others.

He said rights could be given to communities following the idea of patent registration. Referring to challenges of communities holding rights, he said collective societies were used for copyright as well.

Peru and China

Begona Venero Aguirre, chair of the Intellectual Property Board of Appeals at the Peruvian National Institute for the Defence of Competition and Protection of Intellectual Property, said that a sui generis law on TK was enacted in Peru in 2002, with work having started in 1994.

This involves registration of resources, a fund for benefit sharing, specific sanctions and an active role for the indigenous people, for whom the material is now being translated. But it has been challenging for the government to gain their trust.

A 2004 Peruvian national committee against biopiracy has filed an “observation” against a patent filed by a French company for the use of oil and seeds from a Peruvian plant in cosmetic and dermatological preparations. Peru has referred to TK use related to this and argued that there is lack of novelty. The traditional use was, “to mix oil and flour of the plant to prepare a special cream to revitalise and make the skin younger,” Venero Aguirre said. Peru is confident that the patent will not be granted, or at least be limited, she said.

Peru has found a similar case but as that is a WIPO Patent Cooperation Treaty application, it cannot file an observation against it and it is “more complicated,” Venero Aguirre said. Peru will file the observation at the national phase, she said.

Referring to challenges such as lack of reference to the origin of TK, problems of finding qualified translators for some languages, and lack of funding, Venero Aguirre said, “We really need some kind of international measure to be taken.” She said disclosure requirements in patent applications would make their job “a lot easier.”

Xuan Li, acting coordinator of the Innovation and Access to Knowledge programme at the South Centre, said China introduced patent protection for traditional knowledge in 1993. She said one of the questions is related to novelty: “Do all kinds of existing TK fail to meet novelty requirement when acquiring a patent?”

She said while other countries have limited experience in patent examination on TK, China has “limited performance assessment on protection regimes.” She said more than 90 percent of patent applications filed in China by Chinese nationals are for traditional medicines.

Li said that prior art and innovation issues are difficult with regards to TK, but she gave examples of how different quantities of herbs in mixed-herb medicines do qualify as an innovation. She concluded that there is a need to establish a system to protect TK.

Tove Gerhardsen may be reached at tgerhardsen@ip-watch.ch.