Protection of Traditional Knowledge Related to. Genetic Resources through Patents The general principle with regard to patentability is laid down in article 27 (1) of the TRIPS Agreement , which stipulates that patents shall be available for any inventions in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application..52An invention usually needs to meet the requirements of absolute novelty (previously unknown to the public), inventive steps and being capable of industrial application.Patents may be granted for all types of processes and products, including those related to primary production, namely agriculture, fishing or mining.53 However, since most of traditional knowledge has been used for long periods, the novelty and/or inventive steps requirement of patent protection may be difficult to meet.54 Because of this most traditional knowledge is not protected by TRIPS agreement. This limitation opens the door for outsiders to appropriate the TK andafter genetically modifying it; they apply for a patent because they can fulfill the minimum standard of patentability under the TRIPS agreement. Additionally, as for community knowledge, it is considered that patent law cannot be used to protect community knowledge acquired and shared over several generations.55Because it is difficult to call such knowledge new and it is also difficult to identify the xxxxxxxx.XX is collectively held and 51 The Convention on Biodiversity and the Nagoya Protocol, Supra note 6, p.30 52 Article 27(1) of the TRIPS agreement 53RozaGiannina Xxxxxxx Xxxxx,2008.Intellectual property rights and protection of traditional knowledge ,Genetic resources and folklore: The Peruvian experience, xxx Xxxxxx yearbook of united nations law ,vol.12.p.518 Available at: xxxx://xxx.xxxx.xx/files/pdf3/mpunyb_14_thesis_rosa_12.pdf [accessedon February 24,2015] 54 Ibid 55 Ibid generated while patent law treats inventiveness as an achievement of individuals.56 Traditional knowledge is, in many cases developed and spread throughout the indigenous community, which makes it very difficult, to identify the inventor. Yet while TK is part of the public domain, a new and non-obvious modification to this knowledge achieved by an individual can be the subject of a patentable invention. Another limitation is that some countries like USA-they do not recognize undocumented knowledge.57 Most of traditional knowledge is undocumented and passed orally from generation to generation.Because of this in such...
Protection of Traditional Knowledge Related to. Genetic Resources through Geographical Indications A geographical indication70 is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.71 It is not the name of the geographical area but the significance of the geographical area to the name of the product that is 66Assembly of first nations, Supra note 64 ,p.165-166 67 Ibid 68Alvarez Ninez Supra note 53,p.520 69Assembly of first nations,Supra note 64,p.167 70Article 22(1) of the TRIPS agreement defines geographical indication as …indications which identify a good as originating in the territory of a Member[of the World Trade Organization], or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. 71WIPO, Geographical indication: an introduction,Design and Geographical Indication Law, Section of the World Intellectual Property Organization (WIPO), Switzerland, Geneva. P.8 Available at: xxxx://xxx.xxxx.xxx/edocs/pubdocs/en/geographical/952/wipo_pub_952.pdf. [accessed on February 30,2015] to be established to qualify for the protection.72 It is not mandatory to establish all the three conditions stated in the definition (i.e. quality, reputation or other characteristics of the good), to qualify for protection, proof of any one is adequate.73 Geographical indicationsare a suitable mechanism to enhance the value of agricultural products, handicrafts and other traditional knowledge-derived products. A number of products that come from various regions are the result of traditional processes and knowledge implemented by one or more communities in a given region. The special characteristics of those products are appreciated by the public, and may be symbolized by the indication of source used to identify the products. Geographical indication does not protect a specific technology or knowledge but only prevent the false use of the geographical indication.74Geographical indication does not protect a specific knowledge but only prevent the false use of the geographical indication because of this geographical indication is irrelevant to protect TK related to genetic resources.
