AAAS Scientific Responsibility, Human Rights and Law Program

AAAS Project on Traditional Ecological Knowledge

Patents

A patent for an invention is the grant of a property right to the inventor(s), issued by an official government patent or intellectual property office. The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States.

Indigenous populations face many challenges under the U.S. intellectual property system in either obtaining patents or protecting their knowledge from patenting by others. U.S. patent guidelines often fail to recognize traditional knowledge as prior art, as most indigenous knowledge and technology is shared orally, and therefore not documented. Even when such knowledge might be eligible for patent protection, it often does not meet the narrow definitions of novelty and non-obvious requirements of the U.S. Patent and Trademark Office (USPTO) patent guidelines.

There are numerous examples of patents granted by the USPTO for biological materials, especially plants, the sources of which are found outside the U.S. and are based on indigenous knowledge. Colorado State University received a U.S. patent on quinoa, a valuable food grain native to the Andes. A U.S. patent was awarded for turmeric, a common spice in India, widely known for it application for healing minor wounds. Patents were also awarded for the natural pesticide properties of another Indian biological resource, the neem tree, which is found growing in virtually every Indian village. In each of these cases, except for neem, the patents were successfully challenged based on demonstrating prior art, although the same evidence did not meet the USPTO's narrow definitions of prior art when the patent applications were initially examined.

Even when indigenous peoples are able to satisfy the requirements for a patent, they still face the prohibitive costs of registering, maintaining and defending patents against infringement. Currently, the cost of filing a patent claim in the U.S. can be up to $10,000, and court costs to take action against patent infringements can be astronomical. The end result is that holders of indige-nous knowledge typically take no preemptive measures in any form to protect against the improper use or exploitation of their knowledge and are often reluctant to share this knowledge for the benefit of others in fear of biopiracy.