The implementation of the patent system sought to foster innovation in fields that would yield the most public benefit, by offering the innovator an exclusive property right. A patent imparts on its owner a right to exclude others from making and distributing the claimed invention. Importantly, a patent does not grant the right to make or use the newly claimed invention itself, for if the invention is an improvement on a previously patented item, the whole item, including the original invention and the improvement as an inseparable unit, falls under the umbrella of exclusion associated with the original patent. However, the limited property right is generally overcome by sophisticated licensing agreements between knowledgeable parties wherein the previous patent owner and the owner of the improvement work together to allow the other restricted use of each granted right to make an item with both attributes. However, this limitation is not to diminish the influence of a patented property right alone; in fact, the repercussions of an exclusionary right are especially profound regarding misappropriation.
While the patent system is not meant to reach knowledge already within the public domain--since an exclusionary right on natural elements would hinder, not promote downstream innovation-the patent system is intended to provide avenues of reward for inventions that newly benefit the public. Unfortunately, this means that patent system does not reach the entire body of information referred to as traditional knowledge, which has been discovered and passed down by indigenous groups for generations. Often consisting of plants utilized for their flavorful, aesthetic, or medicinal qualities, traditional knowledge incorporates mostly natural materials within the public domain that indigenous populations utilized for centuries. As such, the information is unpatentable. Because traditional knowledge is already within the public domain, any patentable "improvements" on the traditional knowledge made by third parties would not be considered improvements at all, but rather original inventions. Based on the patent system, the indigenous groups would not have any initial right to the information and would not be entitled to licensing agreements or compensation for subsequent inventions. Not only are the traditional groups unable to obtain an exclusionary right to the information and prevent others from the exploitation and misappropriation of their knowledge, but, furthermore, the indigenous people are also unable to claim any financial interest or entitlement to licensing agreements over subsequent research done by third parties.
This paper will address three potential cases of misappropriation concerning traditional knowledge and genetic resources of traditional groups in Africa and will explore how the Western patent system enabled, prevented, and corrected misappropriation in the context of these case studies. In all three studies, the patent system failed in misapplying the requirements of patentability and in granting patents for information that is per se unpatentable. However, the unpatentability of these specific instances of traditional knowledge also precludes the indigenous populations from claiming property rights over the information. Without an exclusionary property right, third parties are still able to commercialize the information. While such misappropriation might not be prohibited under patent law, the wrongful taking still is immoral. Though the patent system has evolved in preventing its inherent discrimination, e.g. recognizing public use outside the U.S. as a patent-defeating element, the patent system effectively fails to enable the indigenous groups to claim their own property right over the information or provide any adequate remedy for the traditional communities including recognition or compensation.
TYPES OF MISAPPROPRIATION AND THE PATENT SYSTEM
While member states in the World Intellectual Property Organization (WIPO) do not currently agree upon a definition, Black's Law Dictionary offers one potential understanding of misappropriation: "a common-law tort of using the non-copyrightable information or ideas that an organization collects and disseminates for a profit to compete unfairly against that organization, or copying work whose creator has not yet claimed or been granted exclusive rights in work." (1) The elements of misappropriation further require: (1) the party claiming right to the information invested time, money, or effort for its extraction, (2) the competing party seized the information without similar time, money, or effort, (3) and the party claiming right to the information thereby suffered injury. (2) In the patent context, misappropriation involving indigenous populations typically occurs when their traditional knowledge--i.e. their unique cultural practices, rituals, and traditions--becomes the subject of a patented right by another group that is more fiscally and commercially knowledgeable and who retains substantial market power or economic influence. Universities and corporations involved with pharmaceuticals or biotechnology recognize the monetary potential in exploiting certain traditional knowledge and, unrestrained by the patent system, gain an exclusionary right and effectively engage in misappropriation of the claimed information.
Though the definition of traditional knowledge is also in contention, it is often understood as "a living body of knowledge that is developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity." (3) Furthermore, traditional knowledge possesses four general traits that serve as the hallmark for the term of art. First, the body of information is all-encompassing including knowledge, know-how, rituals, skills, innovations, practices, and traditions. (4) Traditional knowledge may be cultural and social expressions of the indigenous communities--folklore, poetry, music, dance, textiles, pottery--or it can pertain to environmental factors, agriculture, or medicine, such as therapeutic salves, hunting or fishing techniques, and knowledge about animal migration patterns. (5) Secondly, indigenous groups serving as the guardians of the traditional knowledge passed and continue to pass the information between generations and, thirdly, the groups pass the information in a traditional, often oral, context. (6) Finally, the traditional knowledge forms a significant portion of and often defines the lifestyle of the indigenous communities who safeguard the information. (7) Traditional knowledge, for many indigenous communities, "forms part of a holistic world-view, and is inseparable from their very ways of life and their cultural values, spiritual beliefs and customary legal systems." (8) More than a commercial success, a community's traditional knowledge lies at the heart of its very identity.
Often, traditional knowledge does have a practical element or commercial potential as well as public health and entertainment implications. As a subset of traditional knowledge, genetic resources may offer great benefit to society at large. However, "when others seek to benefit from [traditional knowledge], especially for industrial or commercial advantage, this can lead to concerns that the knowledge has been misappropriated and that the role and contribution of [the traditional knowledge] holders has not been recognized and respected." (9) The Convention on Biological Diversity defines genetic resources as "parts of biological materials that: (1) contain genetic information of value and (2) are capable of reproducing or being reproduced." (10) Examples of genetic resources include matter isolated from plants, animals, or microbes, including medicinal or agricultural crops, and animal breeds. (11) It is precisely the practicality and usefulness of these genetic resources that render them susceptible to commercial exploitation by third parties. Misappropriation "entails the wrongful or dishonest use or borrowing of someone's property." (12) Not only does misappropriation prevent indigenous communities from claiming a property right to the information they have discovered, isolated, and used that now belongs to another entity holding a patent to the traditional knowledge, but moreover, misappropriation leaves the native groups without any financial ownership of their traditional knowledge. The indigenous groups are unable to participate in any of the profit that results from the misappropriation of their traditional knowledge. Furthermore, as a core element of the group's identity, taking of their traditional knowledge and genetic resources without consent or prospective benefit sharing presents not only financial concerns, but moral concerns as well.
Silke von Lewinski, in her book Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge, and Folklore, characterizes traditional knowledge and genetic resources in a manner distinct from the definitions heretofore discussed. Where it is otherwise understood that both genetic resources and traditional knowledge are interrelated and identifiable as property rights, Lewinski distinguishes the two domains based on the potential for recognition within the patent system. (13) Lewinski argues: "Traditional knowledge is human information, and as such it can be considered as something 'intellectual,' which may lead to protection within the framework of intellectual property rights." (14) On the other hand, genetic resources "may contain important and useful information," but this information "is merely natural, and therefore in principle not 'intellectual' information." (15) In essence, intellectual property and patent protection for genetic resources is not available by virtue of their natural origin--in patentability terms, the material is ineligible subject matter...