Author ORCID Identifier
Patent, Indigenous knowledge, Traditional Knowledge Digital Library, India, South Africa, National Recordal System, Defensive protection, WIPO
Proponents of databases as defensive protection posit that having sources of traditional knowledge easily accessible to, and searchable by, examiners during the prosecution process should minimize the grant of patents covering traditional knowledge, and avoid the problems such erroneously granted patents may produce. Some countries, such as India, which support an international sui generis positive protection instrument, also support the use of traditional knowledge databases, as the two approaches are not mutually exclusive. India's CSIR, which created and maintains the TKDL, asserts that the database has thwarted the grant of scores of patents in IP offices across the globe, although commentators have cast considerable doubt on the veracity of several of the ICSIR's claims.
Such defensive protection sounds like a win-win scenario for both patent offices, which do not wish to grant bad patents, and traditional knowledge-holding communities, who do not want to have to challenge bad patents once they have issued. As noted by an EPO official: "We take this seriously. Countries with rich traditional and holistic knowledge often have to spend lots of money on opposition procedures. The database could prevent that by helping the EPO to grant properly scoped patents." But is the protection real or illusory? What "protection" is a defensive traditional knowledge database actually providing to the knowledge it contains? At least eight countries have begun employing such databases (and others are considering such a move), which promise possible benefits, but also latent dangers and unintended consequences for the indigenous peoples and local communities who hold traditional knowledge within their borders.
This Essay aims to address these questions and illuminate subtle, yet important concerns involved with initiatives that embrace "defensive protection" for traditional knowledge without concomitant positive protection.
Part II of the Essay briefly describes and deconstructs the mechanisms of defensive protection as exemplified by the Indian TKDL. It then explores the risks of relying on such databases in isolation as protection mechanisms for traditional knowledge in Part III. Part IV describes a superior approach of integrating positive legal protection with databases, illustrated in South Africa's planned indigenous knowledge protection framework. The Essay concludes that databases can be helpful in bringing traditional knowledge to light, but that providing true protection for that knowledge is a different matter.
Washburn Law Journal
Margo A. Bagley, The Fallacy of Defensive Protection for Traditional Knowledge, 58 Washburn L.J. 323 (2019).