Traditional Knowledge: A New Challenge in Patents

Abstract

Traditional knowledge has always been an easily available treasure and thus has been subjected to misappropriation. Intellectual Property Rights are one of the sites which represent the encounter between indigenous knowledge and modern scientific knowledge. The researchers in this paper try to highlight that TRIPS does not acknowledge traditional knowledge and neither has it made reference to the protection. TRIPS agreement provides for sui generis system and the part of the rationale behind the sui generis provision is that the claims of indigenous knowledge holders are based on completely different socio cultural norms, therefore, a system that is unique and rooted in local specificities should be used for the protection of indigenous knowledge. The problem of sui generis model is lack of proper system of benefit sharing and inclusion of traditional knowledge as in IP instruments of TRIPS. Possession is the most important basis to claim for IPR protection, thus the paper tries to portray that Traditional Knowledge is common knowledge and a product of collective experience without an individual act of creation; therefore it gets precluded from getting protection under IPR regimes. This paper brings to light the grant of patents on non-original innovations, which are based on what is already a part of the traditional knowledge of the developing world have been causing a great concern to the developing world. It further talks about the real challenge to Patent by Traditional knowledge are lack of complete data bases and availability to all the patent offices in the world. Another prime reason which the researchers think why Traditional knowledge is facing challenges in the patent as the locus of ownership cannot be clearly identified for knowledge systems that are essentially inter generational and products of communal endeavor. Traditional knowledge often falls short of requirement of non obvious or novel as it is often orally transmitted evolves gradually the prime ambit on being to respond to changing ecology and needs. These barriers have kept the traditional societies outside the ‘loop’ of the Patent protection. The researchers further in this paper intend to highlight the steps taken by Indian Government to curb the menace of biopiracy and biomedicines.