New Horizons in Environmental and Energy Law series
Chapter 12: The recognition of traditional knowledge as prior art
Issues of traditional knowledge (TK) may arise in regard to claimed inventions which may be based on it, may be derived from it, or may be guided by or make use of it.1 WIPO has noted that traditional knowledge may be potentially relevant to an invention’s novelty or inventiveness (non-obviousness), to an applicant’s declaration of identity of the true inventor(s), to an applicant’s obligation to declare all known prior art relevant to an invention’s patentability or to the applicant’s claim of entitlement to apply for an invention.2 One of the conditions of patentability is that a claimed invention must be novel/inventive, and this criterion is assessed in relation to what is already known or exists. This body of existing knowledge is termed state of the art or prior art.3 Developing countries have alleged that the patent system facilitates the misappropriation of traditional knowledge by granting pat- ents on inventions based upon it, since the intellectual property rights (IPR) system does not recognize this body of knowledge as prior art. The discussions in the TRIPS Council have put concerns about the misappropriation of traditional knowledge into two categories: concern about the granting of patents or other IPRs covering traditional knowledge to persons other than those indigenous peoples or communities who have originated and legitimately control the traditional knowledge; concern that traditional knowledge is being used without the authorization of the indigenous peoples or communities who have originated and legitimately control it and without proper sharing of the benefits that accrue from such use.
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