[Reader-list] First posting on Understanding the Patenting of Traditional Knowledge

[Aarathi Chellappa]

Patents have traditionally been awarded to promote
invention and innovation. The aim of establishing a
patent system was to encourage inventors in various
fields of technology to develop new and useful
products and/or processes and disclose them to the
general public, in return for which, a monopoly over
the manufacture or use of the product of process was
awarded to the inventor. However, in order to qualify
for a patent, the invention or innovation would have
to be new, novel and useful. 

Whether a patent is new in its particular field of
technology is tested against the existing body of
knowledge in that field. In the light of this newness
requirement, it is surprising that over the past few
years, the United States Patent and Trade Mark Office
(“USPTO”) has granted patents over products or
processes already known in other parts of the world. 

I will examine patents granted by the USPTO over
inventions or innovations that were already known in
traditional knowledge systems in other parts of the
world. The outcome of the research would be to
understand why such patents were granted. There are
numerous issues that arise in such an undertaking.
Primarily, the concepts involved will have to be
defined. What is prior art? What is traditional
knowledge? Etc. Also, I am studying the overlap
between traditional knowledge and prior art. In some
cases, like turmeric, the knowledge is fairly
widespread enough for it to be treated as known to the
general public. In other cases, the knowledge is
limited to a few members of a particular group. Would
that also equate to prior art? Is such equivalence
fair? I will also be examining what a prior art search
would cover and what the limitations of a prior art
search are.

Another issue of concern is whether patent drafting
methods can be adopted to avoid effective prior art
searches? As part of my study, I will be examining the
various attempts being made by organizations to
protect traditional knowledge. Several moves are being
made to database traditional knowledge, therefore
making it available for prior art searches by patent
offices worldwide. However, there is a possibility
that careful patent drafting may frustrate these
efforts. 

The materials that will be studied are the actual
patent applications, articles and books on the
subject, relevant case law and national and
international laws. I hope to visit CSIR in Delhi to
learn from them what efforts are being made to prevent
the turmeric, basmati and neem situations from
recurring. I will also visit other organizations in
India that are undertaking similar efforts. The first
phase is a review of literature and is underway. I
have begun by reading available articles on the area,
currently articles available electronically. I will be
visiting libraries in the course of the next week.

I look forward to feedback, comments etc.
Thanks,
Aarathi.


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