Comments on: US Patent Office to Reject Based on Traditional Knowledge

By: Herbert Franke

Herbert Franke — Thu, 03 Dec 2009 10:18:58 +0000

As long as the database is accessible to even a subset of the public, e.g. for a subscription price, this constitutes publication. And as mentioned, most of the database is a collection of prior publications, so that all this does in most cases is increase ease of access.
The way I see it, there is nothing here that breaks the law.

Furthermore, defining indigenous people as ‘peoples who likely are not in a position to make, use, sell, offer for sale or import into the US’ is beyond the pale. It is neither true nor an argument, since what you are saying here is that your view of things only takes a right away from people who, in your opinion, probably mainly are in no position to use it. Rights do not depend on whether people are presently in a position to exercise it or chose to exercise it. A right’s economic value depends on usage, but this cannot be confused with its legal status.

By: US Patent Office to Reject Based on Traditional Knowledge … | China Law | China's Law

Wed, 02 Dec 2009 16:39:31 +0000

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By: hercule

hercule — Wed, 02 Dec 2009 03:04:39 +0000

If you go to the TKDL website and look through it, you can easily find the following table which lists the discipline, the number of books and the “formulas” transcribed from these books. It also lists the books. The most recent published book that I found was published in 2001, and the oldest was published in 1881. Most of the books are pre-1970s. It is pretty clear that while the database itself might not be publicly available (we can’t search the entire thing, cf Lister), the underlying books are publicly available somewhere.

Present Status (October 2009)
Ayurveda 75 books 82,600
Unani 10 books 1,12,500
Siddha 50 books 12,718
Yoga 13 books 950
Total 148 books 2,08,768

By: EG

EG — Tue, 01 Dec 2009 20:36:53 +0000

” But you noticing will probably get you put on some kind of a watch list or something, so tread lightly!”

Gene,

I’m not worried about being put on a “watch list.” I’ve been a “heretic” for many things I say or do (“politically correct” isn’t in my vocabulary). In other words, I remain unrepentent!

What is important here is that we have a free debate of views, even if we don’t agree. What worries me more is that being “politically correct” becomes the norm for “white-washing” the facts. History, and especially American history, is becoming a tale of “myths” not facts for that reason. We’re already burdened by the “Jeffersonian story of patent law” because SCOTUS won’t do its historical “homework” on the Copyright and Patent Clause, as shown especially in Graham v. John Deere.

By: Paul F. Morgan

Paul F. Morgan — Tue, 01 Dec 2009 17:12:40 +0000

Thanks for the above comment reminders of 102(f), one of the least understood forms of statutory prior art. 35 USC 102(f)/103. The CAFC surprised a lot of patent attorneys with its one and only case, [expressly of first impression] on that subject – OddzOn Products Inc. v. Just Toys Inc., 122 F.3d 1396, 43 USPQ2d 1641 (Fed. Cir. 1997). Note that 102(f) reads in its [chauvinist] entirety: “(f) HE did not himself invent the subject matter sought to be patented.” 35 USC 102(f) thus now CAN include “secret” prior art even in combination with public prior art, which secret prior art can be information disclosed to the inventors by any others NOT named as inventors, even information disclosed to the named inventors in implied confidence. The Court based its decision on the unfortunate choice of statutory language (in caps here) in the 1984 amendment of Section 103 intended only to overrule In re Bass type coworker “prior art”: “Subject matter developed by another person, which QUALIFIES AS PRIOR ART only under subsection (f) or (g) of section 102 of this title, shall not preclude patentability under this section where the subject matter and the claimed invention were, at the time the invention was made, owned by the same person or subject to an obligation of assignment to the same person.”

By: Gene Quinn

Gene Quinn — Tue, 01 Dec 2009 16:02:21 +0000

Dale-

Amen! Unfortunately Old Timer raises an excellent point. This has a lot to do with health care I suspect, as did the mammograms for women over 50 policy shift. We need to keep up the fight and get the truth out there.

By the way, how is your book proceeding? When will it be released?

-Gene

By: Gene Quinn

Gene Quinn — Tue, 01 Dec 2009 16:00:37 +0000

Charles-

Excellent question! I don’t have an answer to that. All I know so far is what was disclosed in a press release. Normally I would not get so hot and bothered about a press release, but Deputy Director Barner was quoted in the press release liberally, and this announcement comes in the weeks leading up to a big UN conference. The Obama Administration has a lot of academics in positions of power, and academics have long been opposed to “misappropriation” of traditional knowledge, never mind that under US laws there is no misappropriation. So, I have to wonder what is going on here. With so much talk of harmonization perhaps I am overly reactive and nervous, but the use of the term “traditional knowledge” is very worrisome.

Like you, I would have no problem with this information having an effective date the date it is made publicly available, and only to the extent it is used only in the traditional sense and not to preempt true innovation based concepts or suggestions.

-Gene

By: Gene Quinn

Gene Quinn — Tue, 01 Dec 2009 15:55:30 +0000

Patrick-

Absolutely, provided however it needs to be more than just discussing the traditional knowledge. As Dale points out, much of this has to do with pharmaceutical companies going around the world, observing, using traditional knowledge as a starting point, figuring out what active ingredients matter, condensing, purifying and artificially creating a mass producible alternative. So merely explaining the traditional knowledge in many (if not most) cases should not be enough under US patent laws to prevent this type of pharmaceutical activity.

The devil will be in the details, but as long as it is prior art only as of the time it is electronically available to the public in a database and only used to the extent it actually teaches, rather than suggests, I have no problems. But then why would the USPTO refer to it as “traditional knowledge”? That is what has me worried. It seems like it would be a publication at that point, so why continue to use the label “traditional knowledge” unless it matters or has some relevance?

-Gene

By: Dale B. Halling

Dale B. Halling — Tue, 01 Dec 2009 15:44:48 +0000

Gene,

From what I have read on this debate, it usually involves a pharmaceutical company using traditional medical lore of native people to search for the active ingredient. Pharmaceutical companies are not marketing willow bark, or other indigenous plant or animal. They are using the medical folklore as a starting point to determine if there is an active ingredient that can be turned into a standard pharmaceutical product. This does not appropriate any traditional knowledge, since the native people do not know what the active ingredient is or how to refine or synthesize it. It is great marketing to suggest that Traditional Knowledge is being appropriated by large pharmaceutical companies, but it isn’t true.

By: Charles Warner

Charles Warner — Tue, 01 Dec 2009 14:18:21 +0000

You did not indicate whether the database is publicly available. If the database is publicly available over the Internet then I have no problem with the USPTO citing to it, the effective date of the information being the date the information became publicly available. If, however, only the USPTO and other patent offices have access to the database, then I would consider the information as not being publicly available and, therefore, not citable as prior art as it would not fit within any of the categories mentioned in the article.