Home > Topics > Bioprospecting, Traditional Knowledge, and Benefit Sharing > Issues and Options for Traditional Knowledge Holders in Protecting Their Intellectual Property > Editor's Summary, Implications and Best Practices

According to Hansen and van Fleet, indigenous or traditional knowledge, particularly that concerning a region’s native flora and fauna (biodiversity), is not fully amenable to the Western legal constructs of intellectual property. Fundamentally, traditional knowledge (TK) is cumulative, communal, and largely undocumented in the formal literature. Because of the dynamic and cumulative nature of TK, it often does not fulfill the novelty requirements characteristic of Western intellectual property, which is more narrowly focused on newly invented or created knowledge. Because of the communal or shared nature of most TK, it departs from the Western IP conventions where ownership of knowledge resides with its individual inventors or creators. Indeed, in the case of TK, it may be exceedingly difficulty to identify the original individual inventors or creators, or even the current holders or curators of the knowledge. Finally, because TK is largely unrecorded, but exists as “living” knowledge passed from individual to individual orally or through observation and apprenticeship, it is largely unavailable for IP offices to consider, as part of the existing repository of human knowledge, when considering issues relating to novelty.

Despite these discrepancies, a number of forms of Western IP rights protection—primarily trade secrecy, geographical indications, plant variety protections, and patents—can and have been used to establish ownership over elements of TK. However, the imperfect relationship between TK and intellectual property has lead to two interrelated dilemmas:

1. In some cases, those who were not part of the indigenous community in which the TK originated may be able to use and even to establish ownership over elements of the TK without recourse to or acknowledgement of the indigenous community from whence it originated.
2. Those in indigenous communities who do hold TK may not be able to establish ownership or even gain acknowledgement by others that they hold the knowledge.

To address the first dilemma, that of misappropriation of TK, the most basic steps that can be taken are to make sure that TK is clearly disclosed establishing it as prior art. For the majority of TK, simply a defensive disclosure in the public domain (such as via a public registry) can prevent illegitimate IP claims over existing TK. For other TK which may be more amenable to IP protections, the TK holders may be able to file applications themselves, which even if unsuccessful would establish the knowledge within the prior art. Another step to address this dilemma is to require prior informed consent to be obtained from indigenous communities and/or national authorities when engaging in activities that could lead to the claiming of intellectual property based upon elements of TK.

To address the second dilemma—that of maintaining control over TK—indigenous holders of TK can seek to use forms of IP protection that may be most applicable. Hansen and van Fleet discuss the advantages and disadvantages of the various options available. At least initially, most TK approximates a trade secret, and might easily be maintained within the original community as a trade secret. In order to disseminate the knowledge more widely however, it may be necessary to use other forms of IP protection, including geographic indication, trademarks, plant variety protection, petty patents or utility models, or patents.

In the longer term, new forms of IP protection that are more amenable to the fundamental characteristics of TK might be created by governments, such as under the aegis of sui generis systems of plant variety protection as defined under the World Trade Organization, Trade-Related Aspects of Intellectual Property (WTO TRIPS) agreement. In so addressing the dilemma of control over TK, several issues outlined in the Convention on Biodiversity (CBD) should be worked out within national legal systems. Foremost are conditions for granting/gaining access to genetic resources and any TK about them, as well as requirements for equitable sharing of revenues or other benefits that might accrue from their development and use in commercial markets around the world.

Any of these approaches to preserving and protecting TK require a clear identification and attribution of specific TK claims. Locating and identifying TK, identifying those who hold the TK, and determining the most appropriate solutions for preserving and/or protecting can be complex and should be heavily influenced by cultural and community factors within each particular context.

TK is important and often even essential to the survival of indigenous communities. Such communities’ TK may, however, also be an important source of life giving technological innovations that could benefit millions around the world. The ultimate goal is to develop practical solutions within our legal frameworks that encourage indigenous communities to sustain their traditions and to also equitably share their knowledge with the wider world in manners that are mutually beneficial to all.

Key Implications and Best Practices

Given that IP management is heavily context specific, these Key Implications and Best Practices are intended as starting points to be adapted to specific needs and circumstances.

For Government Policymakers

• Indigenous or traditional knowledge (TK) is by its very nature not fully amenable to the Western legal constructs of intellectual property. Fundamentally, TK is by its very nature cumulative, communal, and largely undocumented in the formal literature. Intellectual property is by design discretely novel, assigned to individuals, and based upon extensive documentation of both the prior art and the new knowledge claimed as intellectual property. This imperfect relationship between TK and intellectual property has lead to two interrelated dilemmas: misappropriation of TK and difficulties in protecting TK.
• Defensive disclosure of TK (such as in public registries) can prevent the misappropriation of TK, but might exacerbate difficulties inherent in protecting TK, possibly even precluding IP protection altogether.
• In the longer term, new forms of IP protection that are more amenable to the fundamental characteristics of TK could be created by governments, such as under the aegis of sui generis systems of plant variety protection as defined under the World Trade Organization, Trade-Related Aspects of Intellectual Property (WTO TRIPS) agreement. Any sui generis system of TK protection would need to conform to the access and benefit sharing terms of the Convention on Biological Diversity (CBD).

For Senior Management (university president, R&D manager, etc)

• The disadvantage of public registries for traditional knowledge (TK) is in the unprotected disclosure of the knowledge to those outside of the community. By effectively placing it in the public domain, disclosure can diminish its commercial value, preclude any IP protection, and open it up to use outside the originating indigenous community without their consent or permission.

For Scientists

• Locating traditional knowledge (TK), identifying TK, determining who owns TK, and so forth, are responsibilities that will likely largely fall on you. As your R&D and fieldwork activities will bring you into proximity (and familiarity) with indigenous peoples and resources, you are the team member who can most significantly contribute to this critical early phase of the program.

For Technology Transfer Officers

• Active IP protection of traditional knowledge (TK) is not always practical or recommended. Alternative forms of IP protection that may on occasion be practical include trade secrecy, geographic indications, trademarks, plant variety protections, petty patents/ utility models, and patents. Protection of TK using registrations of plant variety protection (PVPs) certificates or patents in multiple major markets could easily cost more than the value of any benefits that might be captured thereby.
• Do not hesitate to establish proper IP protection over the indigenous TK of your country, either via defensive disclosure, patent application filing, or possibly other IP protection mechanisms. Whichever approach is more appropriate for a given case will depend on numerous factors that will require thoughtful and thorough consideration.