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Thailand Law Journal 2009 Spring Issue 1 Volume 12

The situation with regard to patenting biological organisms in the United States is clearer. The United Stated Government passed the Plant Patent law of 1930 and the Plant Variety Protection Law of 1970, both of which had been passed in the brief that patent law did not extend to living things.27 In 1980, the United States Supreme Court ruled in the Chakrabarty Case that living things are capable of being patented under the general law. This case is considered as a landmark case to protect plants, seeds and tissue cultures.28 As a result, the United States probably leads the world in the scope of protection that it offers to biotechnological inventions in that ‘invented’ living organisms can be patented and that plant varieties can be patented and protected.29

The concept that ‘living resources cannot be patented’ is also a cause of genetic flow. This concept is support to the concept of common heritage which believes that genetic resources belong to all peoples. Developing countries were not taken into account with regard to the protection of their resources because genetic resources were not protected by intellectual property rights.

In summary, for the above-mentioned reasons, genetic resources flowed from developing countries to developed countries through the governmental and non-governmental organisations via co-operations or research projects, particularly in the agricultural and health care sectors. However, trade, bilateral agreement and misappropriation also made a small contribution to the flow of genetic resources. Currently, the problem of genetic loss and the concept of common heritage have faded out from international debate, but the protection of traditional knowledge and genetic resources remains in the debate.

C The Protection of Traditional Knowledge and Indigenous Resources
The protection of traditional knowledge has been taken up in global discussions concerning intellectual property and trade.30 Although it has been a critical issue, since the enactment of intellectual property laws, the traditional system has never considered indigenous knowledge as a part of it.31 As mentioned above, large numbers of world populations depend on traditional knowledge for survival. Traditional knowledge and indigenous resources are being accepted, but indigenous communities are still waiting to receive the benefits or royalties for their traditional knowledge.32

The world’s trend for protection is widely accepted. Experts, such as Peter Drahos states in his report to UNCTAD-Commonwealth Secretariat that:

Over the last ten years or so more and more international organizations and policy networks have done work on protection of traditional knowledge (TK). One of the issues that has been increasingly raised is whether there should be a treaty on traditional knowledge. What such a treaty would contain and who would or would not support it are questions to which there are no very detailed answers. To some extent they are unanswerable until an international organization begins the process of standard-setting.33

For several reasons, the protection of traditional knowledge can be for social, legal, cultural, political or economic reasons including:

  • to support the maintenance and integrity of indigenous people’s cultures
  • to protect the pluri-cultural nature of global society
  • to maintain the body of global knowledge necessary for the design and implementation of sustainable development strategies
  • to secure the human rights of indigenous and local communities over their intellectual property
  • to prevent illegal use and theft of traditional knowledge
  • to ensure equity and justice
  • to support poverty alleviation and economic development.34

The protection could be done either by positive or defensive protections.35 It is a crucial matter to indigenous peoples and local communities in all countries particularly in developing and less developed countries. The protection will   reduce the gap between developed and developing countries. While the developed countries are fully equipped in both capitals and technologies, the developing countries are rich in resources. The appropriate system for equitable sharing of benefits needs to be searched for their mutual agreements.
27. Klaus Bosselmann, above n 2 of Part I, 126.

28. Klaus Bosselmann, above n 2 of Part I, Plant breeders have the right to patent a new variety of plant under both acts and under general patent law so long as they can satisfy the necessary criteria.

29. Klaus Bosselmann, above n 2 of Part I, 126.

30. Daniel Gervais, above n 58 of Part I, 1.

31. Atencio Lopez, Indigenous Expert, International Workshop on Traditional Knowledge for the Recovery and Protection of Traditional Indigenous Knowledge [2] UN Doc. PFII/2005/S.TK/6 (2005).

32. Ibid.

33. Peter Drahos, above n 62 of Part I, 6.

34. Merle Alexander, K Chamundeeswari, Alphonse Kambu, Manuel Ruiz and Brendan Tobin, ‘The Role of Register and Databases in the Protection of Traditional Knowledge: A comparative Analysis’ (UNU-IAS Report, United Nations University, 2004) 11.

35. The positive protection included: (1) Recognition of value and promotion of respect for traditional knowledge systems, (2) Responsiveness to the actual needs of holders of traditional knowledge, (3) Repression of misappropriation of traditional knowledge and other unfair and inequitable uses, (4) Protection of tradition-based creativity and innovation, (5) Support of traditional knowledge systems and empowerment of traditional knowledge holders, (6) Promotion of equitable benefit-sharing from use of traditional knowledge, (7) Promotion of the use of traditional knowledge for a bottom-up approach to development. The main focus of defensive protection measures has been the patent system. Defensive protection aims at ensuring that existing traditional knowledge is not patented by third parties ideally, by ensuring that relevant traditional knowledge is taken fully into account when a patent is examined for its novelty and inventiveness. The defensive protection of traditional knowledge has two aspects: (1) a legal aspect: how to ensure that the criteria defining relevant prior art applies to the traditional knowledge, for example, this could mean ensuring that orally disclosed information must be taken into account (since many important bodies of traditional knowledge are normally transmitted and disseminated by oral means), (2) a practical aspect: how to ensure that the traditional knowledge is actually available to search authorities and patent examiners, and is readily accessible. For example, this can ensure that it is indexed or classified, so that it is likely to be found in a search for relevant prior art. See World Intellectual Property Organization (WIPO), above n 15 of Part I, 16, 26-7.

This article is published with the kind permission of Panumas Kudngaongarm, Professor, Ph.D. Candidate, School of Law, the University of New England, Australia. (Lecturer, School of Law, Sukhothai Thammathirat Open University, Thailand.). This article was presented at the Inaugural Conference of the Asian Society of International law: International Law in Asia-Past, Present and Future.

 

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