Leveraging Traditional Knowledge on the Medicinal Uses of Plants within the Patent System: The Digitisation and Disclosure of Knowledge in South Africa

Emeka Polycarp Amechi

doi:10.4314/pelj.v18i1.04

Abstract

Traditional knowledge (TK) plays an important role in the global economy and is valuable not only to those who traditionally depend on it in their daily lives, but also to modern industry, especially the global biotechnology, pharmaceutical and agribusiness corporations. Yet the exploitation of TK by these industries does not usually lead to corresponding benefits to indigenous communities either in the form of attribution or compensation. Such misappropriations of TK are aided by the fact that the global intellectual property (IP) regime as presently structured is based entirely on the traditionally western or conventional description of knowledge, as are its conceptions of individual intellectual property ownership. In response to the fact that their calls for the reform of the global patent system have not be heeded, most developing countries, including South Africa, have resorted to the adoption of a radically different strategy in their approach to intellectual property, particularly as it concerns the protection of their TK from misappropriation. This is evident in the adoption of strategic measures in South Africa for the protection of various aspects of its TK forms from misappropriation, such as the National Recordal System (NRS) and Disclosure of Origins (DRs). This paper seeks to explore the implications of these measures in leveraging TK within the structure, content and conceptual framework of the patent system in South Africa. The focus is on TK associated with the medicinal uses of plants (TKMUP). 

Highlights

Traditional knowledge (TK) associated with a biological resource is an intangible component of the resource itself
In view of such reluctance to adopt the proposed reforms to the global intellectual property system, most developing countries have resorted to the adoption of a radically different strategy in their approach to intellectual property, as it concerns the protection from misappropriation of their TKMUP and other TK associated with biodiversity.[12]
The system requiring the disclosure of the origins of TKMUP was adopted in response to the Indigenous Knowledge System (IKS) policy, which indicated the need to amend SA's patent law in order to formally require the declaration of the use of TK or the transfer of materials arising from the indigenous use in the prior art declarations in respect of patents.[78]

Summary

Introduction: a dialectical relationship

Traditional knowledge (TK) associated with a biological resource is an intangible component of the resource itself. The DKR is equipped with a rich set of annotations and metadata fields that describe or translate the TK into the formal information structures needed for legal protection and scientific interrogation.[31] for research and prior art search purposes, the information can be converted into text in the six United Nations languages.[32] the DKR has technology capabilities of allowing knowledge base conversions of indigenous names into scientific names.[33] such an information structure, which is partially or completely incompatible with the original TK form, may be criticised as a forced assimilation of the TK into an epistemological narrative rooted in traditional western science and technology This is due to the fact that it "imposes a data bias on the recorded IK, recontextualising it into the domains. It is our firm belief that our culture and identity are the pillars of our economic development journey, which is why we are participating in this project.[45]

Utility of the NRS to the patent system

The disclosure of the origins of TKMUP in South Africa

Implications for TKMUP within the patent system

89 Issued in terms of Ch 7 of the National Environmental Management

Conclusion

Literature