Untitled Document

Antony Taubman

(Acting Director and Head of Traditional Knowledge, World Intellectual Property Organization)

Keynote Address, 2 December 2005

"The Personality of Patenting, Traditional Inventions and Inventing Traditions"

This paper reflects on current trends on traditional knowledge and the patent system: if a claimed invention is expressed not in a language but a knowledge system that is incomprehensible to you, are you tempted to fault it for lack of utility or inadequate disclosure, or do you have to redefine a new kind of person skilled in the art to act as the addressee? Procedural and legal developments in the recognition of traditional knowledge within patent systems have shown the inherent flexibility and responsiveness to change of the core principles of the system. But they can also raise searching questions about how the foundational concepts of patent law can embrace . The patent system is founded on a a particular, essentially utilitarian notion of what should be recognized as a patentable invention, shaped and bounded by policy considerations stretching, at least in Anglo-American law, back past the Statute of Monopolies. As the geographic, cultural and intellectual scope of the users of the patent system broadens, so does the scope of knowledge, knowledge systems and even ways of knowing that may be relevant in construing and applying the core principles -- as does the very personality of the inventor and the notional addressee of the patent, as innovators within traditional knowledge systems also make use of the patent system. Concrete steps have been taken to recognize bodies of traditional knowledge within some of the core practical mechanisms of the patent system – is this a shift in the epistemic centre of the system, a natural evolution, or, as Lord Hoffmann pondered, “does patent law have a specialised epistemology of its own?” Justice Tomlin lamented that “nobody … has told me, and I don't suppose anybody ever will tell me, what is the precise characteristic or quality the presence of which distinguishes invention from a workshop improvement. Day is day, and night is night, but who shall tell me where day ends or night begins?” Do we need to speculate, still further, to reflect on what constitutes a workshop, and where it might be located? If the concept of inventive step is, for Judge Learned Hand, as ‘fugitive, impalpable, wayward and vague a phantom as exists in the whole paraphernalia of legal concepts,' how can this concept cohere with increasing epistemic diversity? Lord Hoffman broaches the scenario: “Imagine a scientist telling an Amazonian Indian … ‘We have found that the reason why the bark is good for fevers is that it contains an alkaloid with a rather complicated chemical structure which reacts with the red corpuscles in the bloodstream. It is called quinine.' The Indian replies: ‘That is very interesting. In my tribe, we call it the magic spirit of the bark.' Does the Indian know about quinine?” But can the enquiry could be taken further: when is the holder of traditional knowledge the person of ordinary skill in the art; or when should they be? What is an ‘ obvious workshop modification' for a traditional healer? A brief review of recent trends in patent filings illustrates that this is no longer a teasing abstract question, but potentially a matter for practical consideration.