WIPO: Databases To Protect GRs, TK, Useful But Some Controversy

In the quest to find solutions to protect traditional knowledge and genetic resources from misappropriation, some countries have resorted to private databases to be used by patent examiners. Indigenous peoples are wary of the process primarily because they are not sure their knowledge will remain safe in those databases. Speakers at a World Intellectual Property Organization this week discussed the pros and cons of such defensive protection.

The Seminar on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions: The Regional and International Dimensions took place from 23-25 June. It included four roundtables on different topics. The last of those focused on collections, registers and databases.

Databases Useful for Patent Examiners

Yoshinari Oyama, deputy director, International Organizations Section, International Policy Division, Japan Patent Office (JPO), presented the process used at the JPO to find prior art for patent applications.

JPO patent examiners use several kind of databases to gather information on prior art. For example, he said, the JPO examiners use patent offices’ databases, commercial databases, and browse genetic resources and traditional knowledge-related websites. Oyama’s presentation is here [pdf].

Enrico Luzzatto, director, Cluster of Pure and Applied Organic Chemistry at the European Patent Office (EPO), underlined the importance of the high quality of patents and of prior art research. Finding prior art information on TK is not an easy task, he said.

Such as the JPO, EPO examiners use several databases, such as the Indian Traditional Knowledge Digital Library (TKDL), the Indian Journal of Traditional Knowledge, Medicinal and Aromatic Plants Abstracts database, the Traditional Chinese Medicine database, and the Korean Traditional Knowledge. EPO examiners also use internet-based information on TK, he added.

Databases can help patent examiners and can reduce post grant opposition, but databases are not always welcomed by TK holders, he said, calling for the issue to be discussed at the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). There is a need for balance between appropriate ways of allowing access to information and at the same time prevent misappropriation, he said.

He also said it is a misconception to think that patent examiners are happy to grant as many patents as possible. Luzzatto’s presentation is here [pdf].

Australia to Develop Map with Indigenous Rules

Steven Bailie, assistant director, International Policy and Cooperation, Policy and Governance Group, IP Australia, said patent databases do not provide easy to find information about where genetic resources come from in a particular invention. A disclosure of source would make it easier for the public and other interested parties to find information on patents involving genetic resources and traditional knowledge, he said.

“When it comes to knowledge you can distinguish two parts,” he said. There is the content of knowledge such as the technical information in a patent document, and there is the system for governing the knowledge, for example, the patent monopoly system that gives the monopoly in exchange for disclosure of the information [corrected], he explained.

It is not always appropriate to take all of indigenous peoples’ knowledge and put it into a database and make it freely available for everybody, he said. Indigenous peoples have their own IP system. They are governing their knowledge and if somebody wants to access that knowledge, “they need to do it on their terms,” he said.

[corrected] The Atlas of Living Australia is in the process of developing a map with all the regions around Australia occupied by indigenous peoples, he said. If somebody wants to do research in that region, “they will click on that region on the map and what will come up is not the content of the knowledge, but the indigenous peoples’ rules to govern the knowledge,” he said.

In the absence of an international law on prior informed consent, and other matters discussed in the IGC, “this system can inform the good faith operators on what they should do.” “The majority of industry these days is interested in doing the right thing, they just don’t have the information” he said.

The map will be similar to the “tiered approach” that is being discussed in the IGC, he said. “It is not a perfect approach… it needs further work, but tiered approach demonstrates that there are different rules for different bits of knowledge for different regions around the world.”

South Africa: Indigenous Knowledge Part of Country’s Transformation

Yonah Seleti, chief director, Science Missions, Department of Science and Technology, South Africa, said indigenous knowledge system are part of South Africa’s transformation agenda “from Apartheid to a democratic South Africa.”

Indigenous knowledge had been marginalised and put aside and is not part of a national system of innovation or even in the legal system, he said. He presented the South African National Recordal System, which records unrecorded indigenous knowledge in various multi-media formats, and aims to promote community indigenous knowledge (IPW, Traditional and Indigenous Knowledge, 10 May 2013).

An aspect of the transition is to drive South Africa from a resource-based economy to a knowledge-based economy.

The main aims of the recordal system are to build and support appropriate networks, enable the discovery, cataloguing, and capturing the national indigenous knowledge in an appropriate framework, and achieving national intellectual property objectives for the appropriate protection of indigenous knowledge, he said.

Challenges regarding the recordal system include issues around the ownership of the national database, its governance and management as it serves a number of government departments. Another challenge is the standardisation of indigenous knowledge information storage and capture onto a common IT infrastructure platform, as well as the levels of access to the national database. Seleti’s presentation is here [pdf].

Usha Rao, assistant controller, Patents and Designs, Department of Industrial Property and Promotion, Intellectual Property Office, India, presented the Indian TK Digital Library (TKDL). She said protecting TK and GR in India is a multi-pronged strategy which includes accession to treaties administered by WIPO, national legislations, such as the Biological Diversity Act of 2002, the Patent Act of 1970, and the TKDL.

Indigenous Peoples Wary of Databases

Preston Hardison, policy analyst, Tulalip Tribes, United States, said one of the first principles is to go see indigenous peoples and ask them what they want instead of assuming what they want.

Indigenous peoples have been developing their own databases for their own use, he said. However, databases could lead to unwanted use and misappropriation, he said. Some issues are related to who owns the database, and the way they are protected. For example, he said, in the United States, if a database is publicly funded, the freedom of information act would allow anybody to ask for access to the information contained in the database.

Making TK available creates petty uses, he said. Petty users are often more dangerous to the indigenous culture than the patent problem, he added.

On 24 June, speakers of the third roundtable of the seminar presented an overview of relevant international instruments, such as the Convention on Biological Diversity (CBD), the Nagoya Protocol to the CBD on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).

All the PowerPoint presentations made during the seminar are available here.