In Defense of Geographic Disparity

Abstract

One of the most controversial issues in contemporary patent law relates to biopiracy, which concerns the exploitation of indigenous traditional knowledge by Western firms without justly compensating the keepers of the knowledge. A high profile example is the neem tree controversy. The leaves and bark of the neem tree, which is indigenous to India, have been used as natural pesticides and fuel by the people of India for years. In the early 1990s, the multinational company, W.R. Grace, obtained United States and European patents on pesticide products derived from the neem tree. The European patents were invalidated, but the validity of the American patents remained intact. The reason for this difference in result is that unlike European patent law, the United States patent code distinguishes between prior knowledge and use in foreign countries and prior knowledge and use in the United States. That is, American patent law, particularly 35 U.S.C. section 102, does not recognize as prior art foreign knowledge and use, such as that which was involved in the neem case. This geographic disparity has been the subject of much criticism, most recently by Professor Margo Bagley of Emory University School of Law. In her well-written article, Professor Bagley contends that section 102's geographic limitation is unconstitutional and bad policy. This essay challenges these assertions. By advocating the elimination of the geographic disparity and thereby allowing foreign knowledge and use to serve as prior art, Professor Bagley seeks to protect developing nations and indigenous peoples from patent rights. In contrast, I argue for an offensive approach whereby patent rights serve to not only induce the commercialization of products derived from traditional knowledge, but also to compensate the keepers of traditional knowledge while respecting the need to conserve the host country's biodiversity. In this regard, the geographic distinction in American patent law is crucial. Novelty is a sine qua non of patent protection, but I believe Professor Bagley's conception of the domain is too broad and does not fully take into account the utilitarian nature of American patent law. While it is true that the Framers drafted the IP clause in the shadow of abusive monopolistic practices, the driving force behind the clause was the enhancement of public welfare. The geographic distinction is consistent with the IP clause because the distinction provides an incentive to invest in and commercialize products derived from traditional knowledge: products that otherwise would most likely remain undeveloped or out of reach for a vast majority of potential beneficiaries. In other words, the prospect of a patent allows for the dissemination of and access to products based on indigenous knowledge in a manner that benefits many more people than would otherwise have benefited. And it is this result the Framers sought to promote. Professor Bagley and I found common ground when she argues that indigenous peoples receive no benefit or compensation from the exploitation of their traditional knowledge. This is the most pronounced concern, but the problem here is not the availability of patent protection as much as it is the lack of an adequate compensatory mechanism for developing nations and indigenous peoples. Safeguards must be put in place so as to prevent biopiracy. The availability of patent protection must be accompanied by consent, an equitable compensatory structure, and a commitment to conserve the host nation's biodiversity. The remuneration, properly channeled, can be invested in research and development, healthcare, conservation, or general infrastructure. While not without problems, this approach compares favorably to a scheme that seeks to protect indigenous peoples from patent rights by rendering patent protection unavailable for products derived from traditional knowledge.