AAAS Scientific Responsibility, Human Rights and Law Program

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Report on Science and Human Rights

Winter 2002 Vol XXII, No. 1

Using New Tools to Protect Traditional Ecological Knowledge

Traditional ecological knowledge describes those aspects of indigenous knowledge systems relating to the use, management and conservation of the environment and natural resources. Ethnobotany, or the knowledge, classification, properties, cultivation, and uses of specific plants, often for medicinal purposes, is an important component of this knowledge. Intellectual property rights, of which one of the best known is patent protection, are intended to protect the moral and material interests of the creators of scientific discoveries or inventions. But patents are often ineffective in protecting traditional ecological knowledge, even when this knowledge warrants such protection. Much indigenous knowledge and technology is shared orally and is therefore not documented, is limited to selected individuals in a community, or is simply taken for granted and considered part of the public domain already. Even when indigenous peoples are able to satisfy the requirements for a patent, they still face the prohibitive costs of registering, maintaining and defending it. The cost of maintaining and defending a patent often presents a formidable barrier to obtaining intellectual property protection. The result is that innovators and holders of indigenous knowledge almost never take preemptive measures to protect against unauthorized exploitation of their knowledge.

The validity of a patent application is evaluated in part by determining whether the invention was known or used by others, or patented or described in a printed publication in the United States or another country more than one year before the patent application was filed. A patent will not be granted when there is such evidence of “prior art.” “Defensive disclosures,”—describing information in a printed publication or other publicly accessible medium—place the invention in the public domain. This also establishes prior art and ensures recognition of the invention’s origins, fosters its sharing and use, and potentially impedes future patent applications based on this information.

In the past, defensive disclosures were limited to traditional publication methods (books, journals, and the like) and were often copyrighted. Recently, the United States Patent and Trademark Office (USPTO) stated that electronic publications, including on-line databases and other types of Internet publications, are considered to be “printed publications” and can qualify as prior art. Currently, all information in the public domain is given equal weight by the USPTO in its consideration of prior art.

The Science and Human Rights Program recently began a project focusing on intellectual property and traditional knowledge systems in order to document indigenous knowledge that is already in the public domain, as a means of establishing prior art. The first product developed by this project is called TEK*PAD (Traditional Ecological Knowledge Prior Art Database). TEK*PAD is an index and search engine of existing Internet-based, public domain documentation concerning indigenous knowledge and uses of plant species. TEK*PAD brings together and archives in a single location, various types of public domain data necessary to establish prior art. Information documented in TEK*PAD includes taxonomic and other species data, ethnobotanical uses, scientific and medical articles and abstracts, as well as patent applications themselves. TEK*PAD is intended for use by anyone researching traditional ecological knowledge, including scientists, health professionals, and those involved in the patent application process. TEK*PAD may be accessed on the Internet at: http://ip.aaas.org/tekpad.