Michael McClurg is a JD candidate at Osgoode Hall Law School and is taking the Patent Law course.
In late 2009, the United Nations Secretariat of the Permanent Forum on Indigenous Peoples released its report on the State of the World’s Indigenous Peoples (“the UN report”). The report is intriguing in that it focuses a significant amount of attention on the effects of the patents regime. The report is replete with criticisms of the lack of respect given to traditional knowledge of indigenous peoples (“TK”).
As law students it is easy in studying the technicalities and legal nuances of the patents regime to lose sight of the larger picture. In the social bargain between the inventor and society at large that forms a patent (i.e. the granting of a temporal monopoly on a particular invention in exchange for the disclosure of the invention and its underlying technical foundation), TK is often left unacknowledged and unrewarded. As the push for greater international streamlining of the patent process (through instruments such as the PCT) gains momentum, there is a risk that TK and Indigenous peoples will be further marginalized. The threat to Indigenous peoples presented by the patents system stretches beyond the injustice of not receiving reward and acknowledgement for the benefits of TK; The UN report highlights that foreign patents granted over TK can also greatly affect an Indigenous community’s cultural practices involving dubiously patented TK as well as control of resources that are material to practicing that TK. In light of the UN report this blog entry seeks to briefly escape the often strict “black-letter” technical analysis of patent law that law school engages us in and encourage us to consider the broader effects of patent law on Indigenous peoples and TK.
One of the most striking aspects of the UN report is the sheer scale on which TK has been expropriated. The report cites a study indicating that there are over 130 patents issued for clinically useful therapeutic drugs derived from plants of which at least 70% came to the attention of pharmaceutical companies due to their usage by Indigenous peoples. The study cited went on to show that over 7000 patents had been granted for the unauthorized use of TK or the misappropriated use of Indigenous medicines derived from plants (see pg. 69 of the report). A complete analysis of such unattributed exploitation is far beyond the scope of a small entry such as this, but there can be little doubt that part of the explanation lies with the devaluation of TK. As the UN report notes, this devaluation is often due to the fact that many aspects of TK are typically not considered to meet the test of novelty because the inventions or practices are typically old, well-known amongst Indigenous communities, and often unattributable to one particular member of a population. Thus when Indigenous peoples do attempt to patent TK they often fail.
On the flip-side of this, the legal interpretation given to the requirement of novelty can also allow non-Indigenous people to “discover” and patent aspects of Indigenous TK. The Canadian requirement of novelty for example, is that an invention not be published in a Canadian or other international publication or be otherwise disclosed more than one year prior. Under this requirement there is very little that would prevent someone who has travelled to an Indigenous community that had not published its knowledge from receiving a patent for some form of TK. Unless the Patent Office somehow knew to check with this community in order to determine if this invention were novel, there is very little reason to suspect that the patent would not be granted. As Professor Mgbeoji notes in his book Global Biopiracy, in the UK and the US this is precisely what has happened in numerous cases in which patents have been granted for medicinal plant use. Professor Mgbeoji specifically notes that patents for Tipir and Cunani, the former used to reduce fever and the latter used to treat heart blockage, were granted to a British chemist. Both were the product of the chemist having spent time with an Indigenous community in Guyana and having been taught of the medicinal uses of the plants (at pg. 147). The way in which novelty is interpreted is a good example of where the law could use a broader perspective that takes TK and Indigenous perspectives into account.
Attempts are being made to alter the patent landscape such that TK is given more consideration and valuation. For example the UN report notes that the World Intellectual Property Organization has funded the participation of Indigenous groups in an intergovernmental committee on intellectual property which is currently drafting a set of objectives and principles. There are also attempts being made by developing countries to ensure that TK is properly acknowledged. For example, India is well-known for successfully fighting for the revocation of a European patent on turmeric, a traditional Indian medicine used in curries. More recently the Indian government has launched a project dubbed the Traditional Knowledge Digital Library which is to act as a digital encyclopaedia of millennia-old traditional Indian medicines and treatments. The idea will be to prevent the expropriation of TK by demonstrating that, despite what some patent applicants may claim, such “inventions” are hardly novel.
As patent law becomes more globalized and as biotechnological innovations create opportunities for life-forms such as plants to be subject to patents, it is increasingly important for students of patent law to consider the value of TK and to ensure that Indigenous peoples are not overlooked.
For further information on this topic see:
Marie Battiste and James (Sa’ke’j Youngblood Henderson, Protecting Indigenous Knowledge and Heritage: A Global Challenge (Saskatoon: Purich Publishing, 2000).
Ikechi Mgbeoji, Global Biopiracy: Patents, Plants, and Indigenous Knowledge (Vancouver: University of British Columbia Press, 2006).
One Response
The brazen appropriation of the age-old knowledge of the world’s indigenous peoples is, as has been adeptly described above, tragic. To this I have two brief comments or observations I would like to make.
The first is in fact somewhat of an objection to that conclusion of tragedy; it is the questioning feeling that I found to arise within me that, while these commercial misappropriators of traditional knowledge were not the source of the creative spark of the knowledge that they have patented, surely, should something not be said for their having the presence of mind to envision the mass, commercial application of this knowledge, and the risk that they undertake in the gathering and mobilization of means to realize this?
Alas, such a strong feeling, does not, as far as my training informs me, conform to the principles and aims of patent law and so is rebuttable. For all its complexities, patent law at its core seeks to reward nothing less than creativity, as opposed to foresight. Whether he chances upon it or takes great lengths to search it out, the finder and eventual commercial appropriator of traditional knowledge has his reward for his superior vision and acumen: the superior benefits (profits) that he may garner therefrom. However, his reward does not and should not extend to include the temporary monopoly over the knowledge that patent law provides, that monopoly being intended to obtain on the basis of invention. With that in mind, the appropriator may work to effect an improvement in the traditional knowledge he has gathered, or find a novel use; however, until that time, for all his sophistication relative to his source community, he has no inventive high ground, and thus is not to be afforded any benefit by patent law.
The second thing is the imperfectness of disclosure of traditional knowledge (i.e. the Indian example) as a solution. Disclosure may prevent the granting of patents or serve to invalidate those already granted; however, this does not stop the use of the traditional knowledge altogether — it only stops monopolistic use. Thus the traditional knowledge irremovably remains in the public domain. And so, where finite resources are involved, the exhaustion of which may detract from the ability of indigenous peoples to use their traditional knowledge to engage in their traditional practices, any use at all of the traditional knowledge, even non-monopolistic, is a problem. One wonders how this may be alleviated, such as by looking beyond patent law to aboriginal law, for disclosure is of no help in this regard.
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