Communities as inventors: Rethinking positive protection of traditional knowledge through patents

• Published date: 01 November 2023
• Author: Anik Bhaduri
• Date: 01 November 2023
• DOI: http://doi.org/10.1111/jwip.12279

Received: 17 July 2022

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Accepted: 25 March 2023

DOI: 10.1111/jwip.12279

ORIGINAL ARTICLE

Communities as inventors: Rethinking

positive protection of traditional knowledge

through patents

Anik Bhaduri

Competiton Law practice, Shardul Amarchand

Mangaldas and Co., New Delhi, India

Correspondence

Anik Bhaduri, Competiton Law practice,

Shardul Amarchand Mangaldas and Co., New

Delhi, India.

Email: anikbhaduri@nalsar.ac.in

Abstract

Traditional knowledge of indigenous communities often

overlaps with spiritual traditions in which certain biogenetic

resources are understood to be “sacred”. Accordingly, one

of the key concerns of these communities is to retain

control over the manner in which the knowledge is used so

as to ensure that its sanctity is preserved. While much of

the literature on the protection of traditional knowledge

revolves around defensive protection, some commentators

have argued for positive protection using patent law by

recognizing the entire community as inventors and vesting

property rights in perpetuity with the community as a

whole. This paper observes that such positive protection

through patents is consistent with the TRIPS Agreement

and is likely to be successful in combating biopiracy but

suffers from one crucial flaw—even if the community owns

patent rights over a biogenetic resource, the community

has no means to ensure that a potential licensee of the

patent would adhere to the religious protocols of the

community. Accordingly, it argues for the incorporation of

collective moral rights rooted in indigenous law into the

legal framework governing the licensing of traditional

knowledge patent with a view to ensuring that indigenous

communities can preserve their cultural heritage even after

such community patents are licensed.

KEYWORDS

international economic law, moral rights, patents, traditional

knowledge, TRIPS

J World Intellect Prop. 2023;26:414–435.wileyonlinelibrary.com/journal/jwip414

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© 2023 John Wiley & Sons Ltd.

1|INTRODUCTION

On July 20, 2006, an angry group of activists stormed into the premises of the University of Hawaii and tore up the

documents granting the university the patent to the medicinal plant Taro (or kalo).

1

The activists chanted Hawaiian

oli, symbolizing the sacred connection between the Hawaiian people and the Taro plant, and made a simple claim,

“You cannot own our Taro.”

2

The university conceded that it did not inventTaro, and soon relinquished the patents.

The Chancellor of the university noted, “It's as if the patents were never filed …Anyone throughout the world may

now plant them, may propagate them, sell them.”

3

The knowledge concerning the various techniques of cultivating

and harvesting Taro, its medicinal properties, herbal remedies derived from the plant was produced within the

native Hawaiian community through a long trial‐and‐error process that involved lived experiences of Taro

cultivators for over hundreds of years.

4

The plant, and the knowledge regarding its medicinal properties is regarded

by the Hawaiian natives as a sacred gift from nature that must be used in accordance with the traditional rules and

norms that preserve its “sacred”nature.

5

The appropriation of this knowledge by the university, and its recognition

as property that can be licensed in exchange for money ran contrary to the traditions, customs, and beliefs of the

people. The fear that this sacred knowledge may be commodified and traded on the open market without any

respect for the age‐old customs that govern its usage within the community led to protests as many feared that the

sacred plant would be defiled, and led to vociferous demands for the revocation of the patent—the relinquishment

of the patent by the university and the statement of the Chancellor was celebrated as the elimination of a threat to

the cultural and spiritual life of the indigenous Hawaiian community. This controversy, however, generated a

widespread debate on what the identity and nature of the taro plant in the eyes of international law—is it a valuable

commercial product with medicinal properties, a sacred relic revered by the local people, or both?

The Taro patent controversy is not unique, but forms a part of a series of different clashes taking place across

the world from the collision of the neoliberal order and its emphasis of the commodification of knowledge with the

indigenous worldview premised on tradition and spirituality.

6

While the neoliberal world as reflected through the

policies formulated by Bretton Woods institutions

7

understand different objects as commodities that have

economic value and may as such be traded, indigenous culture often weaves native flora and fauna, and even the

topography into a unified cohesive cosmic order that is sacred, spiritual and therefore not to be exploited. The

“fictitious commodification”of knowledge that serves as the foundation of the neoliberal intellectual property

regime

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is alien to indigenous communities, who see knowledge as a sacred gift from the divine that is held in trust

by the community to be handed down to future generations.

9

Medicinal plants traditionally used by the community

are usually not viewed by the indigenous people as a resource that yields value to humans, but rather as a special

object that symbolizes and sustains a connection to something beyond this world.

10

The sanctity of these objects is

paramount, and their desecration through commercial use would threaten the entire world view of the indigenous

people, and impose on them an alien viewpoint premised on neoliberal theories of property rights and price, in

which there is a clear distinction between the sacred space of religion and the secular world of trade and commerce,

and knowledge is predominantly a resource to be monetized, rather than a cultural heritage with religious

connotations.

If the knowledge is understood as a manifestation of culture that needs to be protected, it falls within the scope

of cultural protection of human rights as enshrined in international legal instruments such as the Convention on

Biodiversity (CBD) and the Nagoya Protocol on Access to Genetic Resources and Equitable Sharing of Benefits

Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol) which further clarifies its

implementation. On the other hand, if the knowledge over biogenetic resources is understood as a form of

intangible property that may be traded, it falls within the scope of the international intellectual property regime and

is covered by laws on international trade law pertaining to intellectual property. The reconciliation of a state's

obligations under human rights treaties and under international trade law with respect to traditional knowledge has

been a matter of intense debate,

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and whether the knowledge of the uses of sacred plants held by indigenous

communities can be protected by the modern international intellectual property regime remains questionable. To a

BHADURI

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