Making Patent Laws Work for Traditional Knowledge

In one of the new series of case studies compiled in "Poor People's Knowledge: Promoting Intellectual Property in Developing Countries," Coenraad J. Visser writes with regard to patents in "Making Intellectual Property Laws Work for Traditional Knowledge" that:

1. Countries should use the (optional) morality requirement in the TRIPS Agreement to refuse the registration of a patent where the invention to which the application relates has special cultural or spiritual significance for indigenous or local communities, or where the application is likely to be considered culturally offensive to such communities.


2. Patent statutes should provide that where an applicant for the revocation of a patent for lack of prior informed consent can prove that the invention uses or derives from a genetic resource found within its territory, or from traditional ecological knowledge held by a local or indigenous community in it, it is presumed that the patentee has taken such resource or knowledge without the prior informed consent of the relevant indigenous or local community. Also, instead of revocation, patent statutes can allow the transfer of the patent to the successful applicant, effective from the filing date of the patent application.


3. Patent statutes should state that prior use by a local community of an invention that utilizes such community’s traditional technical knowledge does not anticipate (or destroy the novelty of) such invention.