Anticipate This!™ | Patent and Trademark Law Blog

Emergence of Traditional Knowledge (TK) Protection?

Posted in Practice Commentary by Jake Ward on September 11, 2006

According to this recent post at the Pierce Law IP News Blog, Brazil is presently spearheading a global movement to obtain international protection for natural genetic resources.  Another word for such indigenous resources is traditional knowledge (or “TK” for short). 

TK protection is a relatively new area being explored in the arena of intellectual property law.  Proponents of recognizing TK are generally nations that have a high degree of biodiversity and which are the most likely to benefit from this potentially new form of intellectual property protection. 

In the U.S., TK is generally viewed as a backlash to international (read U.S.) enforcement of patent rights when researchers go to remote places (for instance the Amazon Basin of Brazil) and collect exotic animal and plant species.  These species are then analyzed for useful characteristics, and in some instances the resultant technology is patented. 

The primary argument for TK is that such research benefits the companies that sponsor the research but very little benefit is reaped by those who had traditional knowledge relating to the species and who were responsible for creating, refining and using this knowledge. The theory is that the creators and holders of the traditional knowledge should be entitled to benefit from it. 

Traditional knowledge is typically developed over many generations, and therefore such knowledge is not novel or inventive . . . and therefore not covered by traditional patent rights.  It is important to note, therefore, that TK protects the core material from which a patent arises.  Essentially, TK protection extends to the potential commercial opportunities associated with a TK resource.  Such resources can include knowledge about a country’s biodiversity, the applied uses and applications of biological resources, and the prevalent local practices. 

Although TK has yet to become a mainstream intellectual property right, TK concepts are being taken seriously today, and practitioners should be aware of the potential emergence of such laws in many countries.

JW Note:  For further information on TK developments, I suggest reviewing the WIPO TK website.

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