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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.
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