Last week on Monday, November 23, 2009, while so many of us were winding down, clearing off our desks and getting ready for the Thanksgiving Holiday, the United States Patent and Trademark Office announced that the Government of India has granted the agency’s patent examiners access to a new digital database containing a compilation of traditional Indian knowledge. This was heralded as tremendously important because by gaining access to the Traditional Knowledge Digital Library (TKDL) the United States Patent Office will be able to prevent misappropriation (i.e., patenting) of traditional knowledge. What a great day! The United States government is taking steps to prevent evil pharmaceutical companies (among others) from misappropriating traditional knowledge of indigenous peoples, who obviously deserve not to have their traditional knowledge patented in the US! What a great day this is! Lions and lambs will no doubt lay down in peace and harmony. The United States is taking steps to honor the United Nations Declaration on the Rights of Indigenous Peoples even though it is not binding through International Law, and even though it directly contradicts US patent law. Hurray, hurray! Of course, please don’t read the patent laws and realize that under US law traditional knowledge of peoples outside the US is in fact patentable. Please also don’t notice that implementing the new “reject based on knowledge existing outside the US” initiative directly contradicts 35 U.S.C. 102. And for goodness sakes, whatever you do don’t tell others that this will further harm a weak US economy!
Before going any further, allow me to be clear. Being liked in international circles means absolutely nothing to me and it shouldn’t mean anything to anyone in the US government. What should matter is following US law and not giving in on US principles and harmonizing US law in order to be liked, have hundreds of thousands chant at the sight of a US leader or out of some desire to turn US sovereignty over to the most useless debating society the world has ever seen. Really! There is simply no way to see as legitimate any organization that has the audacity to have a body purporting to monitor and support human rights and then proceeds to have as human rights group members China, Zimbabwe, Saudi Arabia, Pakistan, Syria and Libya. For crying out loud in 2004 the UN allowed Sudan to become a member of its human rights group despite genocide in Dafur. Can’t we all agree that genocide is bad?
According to Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO, Sharon Barner: “The USPTO has long been concerned about attempts to patent traditional knowledge, not only because it may result in an incorrectly granted patent, but also because it removes knowledge from the public domain.” If only that were true. It sounds good no doubt, but it is simply not true. Granting a US patent on traditional knowledge doesn’t mean that indigenous peoples have to stop using the knowledge, it just means they couldn’t use that knowledge in the US to make, use, sell, offer for sale or import products that would violate the issued patent. And, after all, they are indigenous peoples. I know that the UN Declaration doesn’t define indigenous peoples, which makes it almost laughable that any country would agree to it not knowing who or what it applies to, but doesn’t it sort of have to imply peoples who likely are not in a position to make, use, sell, offer for sale or import into the US?
Traditional Knowledge (TK) is a broad term referring to knowledge systems, encompassing a wide variety of areas, held by traditional groups or communities or to knowledge acquired in a non-systemic way. These knowledge systems have significance and relevance not only to its holders but to the rest of the humanity.
Doing a Google search trying to find further meaning of “traditional knowledge” I came across a number of academic publications that not surprisingly seem to think it is evil to grant intellectual property rights to traditional knowledge, US law to the contrary notwithstanding. The Abstract for Triangulating Culture’s Value: Traditional Knowledge, Intellectual Property, and the Digital Archive, which seems a representative illustration and says:
The dilemmas posed by intellectual property claims to valuable traditional medical knowledge are increasingly debated in the commercialized global arena. Developing countries, indigenous communities, and special-interest groups are concerned that legal and market actions in dominant states will unethically and inequitably impact cultural practices they claim as their own. Thus, social movements linking the preservation of indigenous knowledge with human and cultural rights have become increasingly coherent and are coalescing, to some degree, to develop effective strategies to protect cultural practices from private proprietary claims.
But what about this UN Declaration on the Rights of Indigenous Peoples? Article 31 is the operative part insofar as intellectual property and patent rights specifically are concerned. Article 31 states:
1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.
The only trouble with this is that 35 U.S.C. 102, which relates to determining when an invention is novel or “new enough” to warrant patenting in the US does not prevent the patenting of inventions that are known or used outside of the United States. The two main sections being 102(a) and 102(b), which state:
A person shall be entitled to a patent unless – (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States…
As you can see under 102(a) knowledge or use must be in the US to create a problem, and public use under 102(b) is only a problem if it happens in the US more than one year prior to filing a US patent application. So, while the Patent Office and Department of Commerce can think it is wonderful to deny US patents to applicants using traditional knowledge that was neither known in the US nor used in the US, to do so they have to ignore the law. The government should never be allowed to ignore the law, period! Many will think I am making much ado about nothing here, but that is simply not the case. It is true that the TKDL will have information that would qualify as prior art under existing US law (i.e., Section 102), but the continued use of the term “traditional knowledge” strikes me as hardly happenstance, particularly given it has what appears to be a pretty well defined and accepted meaning. Take a look at this from the USPTO press release:
This database will be an important addition to the growing array of search tools on traditional knowledge from around the world that is already available to USPTO examiners. These tools include dictionaries, formularies, handbooks, and historical or classical works, as well as databases such as the TKDL. USPTO examiners use these tools to help prevent the patenting, and thereby misappropriation, of existing traditional knowledge… ******* The misappropriation of traditional knowledge through the mistaken issuance of patents has been a growing concern with the rise of the global economy and the increasing importance of intellectual property. A few high profile cases brought significant attention to this matter, prompting efforts by a number of countries to create digital traditional knowledge databases accessible to patent examiners around the world. If a patent application attempts to claim an invention within the existing traditional knowledge, a patent examiner will reject the application provided they can find evidence proving the prior existence of that knowledge.
US patent examiners can prevent patenting based on the existence of traditional knowledge if there is evidence of prior existence of that knowledge. This makes me sick to my stomach! Sounds to me like we are heading back to the Dudas years when examiners issued rejections not based on law, but based on policy and self preservation. This is arguably worse though. Examiners will apparently be instructed to reject patent claims despite US law clearly and unambiguously saying traditional knowledge of indigenous peoples cannot prevent the issuance of patent claims. I think we need to JUST SAY NO to any patent reforms that in any way seek to harmonize US patent laws, and I think we need to demand the Patent Office follow US law and not some non-binding UN Declaration!