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Patenting Lives Conference
Traditional Knowledge Panel
The Protection of Traditional Medicine in the OAPI Space
Patrick Juvet Lowe
The inventive capacity of man made a prodigious jump these last decades, but with these developments have come associated problems in their access and dissemination. In particular, there are significant problems relating to health, especially in the case of sub-Saharan Africa, where such problems pose a particular risk and stand out as some of the principal obstacles to its development. The international context seems to worsen the problem, in particular with the adoption of the TRIPS Agreement of the WTO, which imposes inter alia obligations on the Member States to provide patent protection for all inventions, including inventions of medicine. Such protection, often strongly criticised due to the fact that it can pose an obstacle limiting the access to drugs, raises more serious difficulties in the African Intellectual Property Organisation (OAPI) space where traditional medicine holds, beside modern medicine, a place of choice in the fight against diseases and sufferings.
With regard to Member States of the OAPI, the protection of traditional medicine by the system of patents currently in force is undoubtedly unsuited to their socio-economic and cultural situation. This established fact is due not only to the characteristics of this type of medicine, but also to real difficulties of application of traditional criteria of patentability. However, the African medicinal inheritance could not be left without protection in a moving world where absence of protection turns out to be an unjustified and highly prejudicial abandonment of the Member States. Accordingly, complementary measures of protection in the sphere of intellectual property rights as well as sui generis mechanisms of protection of traditional knowledge (outside this sphere) may be considered. This study examines possible measures in order to remain in conformity with the relevant requirements of international trade while meeting the legitimate socio-economic needs of populations.
PGR and the Associated Traditional Knowledge: Does the Distinction Between Higher and Lower Life Forms Matter?
Chika B Onwuekwe
While the debate over the proprietary nature of Plant Genetic Resources (PGR) and the associated traditional knowledge for patent purposes is ongoing, the recent distinction between patenting of "higher life" and "lower life" forms compounds the issues. Although the 2002 Supreme Court of Canada's judgment in Harvard Oncomouse alludes to this distinction, the Court's subsequent judgment in Schmeiser v Monsanto seems to categorize plants and related materials as lower life forms capable of patent protection.
It is on this basis that this paper discusses the implications of the Harvard Oncomouse distinction between "higher" and "lower" life forms for developing countries, especially with the proliferation of biotechnology and genetic engineering patents. The paper juxtaposes the extension of patents in Western countries, notably United States and Canada, to life forms against the persistent refusal to extend patent protection to plant genetic resources and the associated traditional knowledge on the basis of the common heritage concept contrary to Article 8(j) of the Convention of Biological Diversity. Indeed, if the definition of patentable subject-matter could change to include items and things of discovery that already exist in nature, and also "life" forms, there is no legally justifiable basis for excluding a community controlled and improved resources, such as PGR and the traditional knowledge on them, from proprietary protection through patents. This paper concludes that such approach is not only inequitable but also inconsistent with the rhetoric on diversity and the notion of building an inclusive rather than a divisive world.Towards Community Rights as a Means of Protecting and Promoting Local Practice and Associated Traditional Knowledge of Biodiversity
Daniel Robinson
In the development of traditional knowledge (TK) regulatory systems there has been a tendency to focus on developing mechanisms to control the scientific and commercial use of TK (facilitated access), with the apparent aim of enabling indigenous and local communities to capture the anticipated benefits of the commercialization of TK (usually profit sharing). Whilst benefit sharing is important for reasons of compensation and justice, there is no guarantee that it will assist with the continuation of TK-associated local customs. Databases, registers and genebanks provide only a static record of knowledge and associated genetic resources. The promotion of traditional knowledge and associated local innovation more generally has often been forgotten. TK is highly situated within complex local cultural and environmental conditions, and is perpetuated by local practice which is threatened by a range of often ill-considered factors outside of biopiracy threats. This paper describes these issues with reference to legal developments and current events between stakeholders in Thailand . Specifically, this intends to illustrate the need for greater 'community rights' amidst a backdrop of exclusion from lands, political marginalisation, and cultural assimilation that are eroding the local customs and associated traditional knowledge of the ethnic minorities of northern Thailand.
