tag:blogger.com,1999:blog-5574479.post3953805786978353782..comments2024-03-29T11:10:02.290+00:00Comments on The IPKat: Knowledge is Power; Traditional Knowledge is ... ?Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-5574479.post-51592779474219405322015-07-20T12:00:43.976+01:002015-07-20T12:00:43.976+01:00What is inventive about a TK gatekeeper?
Further,...What is inventive about a TK gatekeeper?<br /><br />Further, ALL IP laws dictate the rights for a limited time, then free and open copying - do you really advocate the same for TK? Would not, by its nature, most TK then by definition have eclipsed the limited time aspect and be placed exactly in the same position that you seek to avoid?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-22736016837045221532015-07-20T08:45:37.430+01:002015-07-20T08:45:37.430+01:00We have service marks for protecting services rend...We have service marks for protecting services rendered by an entire business or company. We have guilds for protecting copyright for a group of people. Why so much of hesitation for recognizing TK as one of the species of IP? IP is all about balancing the right of originators / inventors / companies and users. The very same principle be applied to protecting TK and rewarding TK gatekeepers. There is no reason why it should be treated any differently. Important is to connect the TK gatekeepers with the resources rich benefactors in a mutually meaning-full way.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-75410144104764742472015-07-20T01:13:28.552+01:002015-07-20T01:13:28.552+01:00
See this guest post from Spicy IP
http://spicyip...<br />See this guest post from Spicy IP<br /><br />http://spicyip.com/2015/07/guest-post-towards-a-nuanced-approach-to-protection-of-traditional-knowledge.htmlAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-72827080481909716192015-07-17T17:33:52.375+01:002015-07-17T17:33:52.375+01:00I am afraid that I no longer know which anon is wh...I am afraid that I no longer know which anon is which. The comment at 20.32 was automatically sent to spam from which I retrieved it, and now I wonder whether the comment at 20.33 is from them and not further to the one at 19.22.<br /><br />Answering the comments at 20.32:<br /><br />“So, apparently a US patent cannot be used as a basis upon which to claim priority for a patent anywhere else in the world now.”<br /><br />No, not after the end of the priority year.<br /><br />“Surely this emphasises the need for Nagoya? It was an argument against novelty that defeated the patent, with absolutely no consideration of TK.”<br /><br />No, it shows that the real objection was that it was not new. Why would consideration of TK have helped? In any case, as I said before, I doubt that any definition of TK that is come up with would include the turmeric situation. <br /><br />“There are legion and they do:”<br /><br />They are indeed legion, but no they mostly don’t. I have checked many examples – which involves not just reading the allegations (which is what your links are) but trying to verify the actual facts. Just because someone calls it biopiracy does not make it so. The first two references you have given do not give enough information for me to easily find out. You do need to look at what was known and what was patented. It is not enough to say “it has something to do with something that came from another country and there was a patent”.<br /><br />My understanding of the third example (relating to ICBG) is that it is not a case of biopiracy at all – it is the exact opposite. The researchers attempted to reach agreement with the Mayan people, but there was such mistrust that agreement was not possible and the project floundered having produced no results.<br /><br />Then you refer to genetically modified plants. So by definition they are not “native plant varieties, known, cultivated and used by native people for centuries”. So the patents cannot possibly be used to prevent anyone doing anything with native varieties. The fact that you clearly disapprove of genetically modified plants does not make it use of traditional knowledge.<br /><br />So I am sorry but I still see no evidence to support the biopiracy paradigm or any need for legislation or benefit that is hoped to be gained from it. I just see some things that you disapprove of that happen to involve plants in other countries.<br />Darren Smythhttps://www.blogger.com/profile/04252776942038752516noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-66683500528251527592015-07-17T09:42:10.828+01:002015-07-17T09:42:10.828+01:00Dear Anon
To answer your further points:
Your f...Dear Anon <br /><br />To answer your further points:<br /><br />Your first point seems to admit that there is no evidence, and your speculation appears to be based on “stranger things have happened”. Do you think that this is a reasonable basis for wide-reaching legislation? I would also argue that if someone extracts and isolates an active compound, then they are not using the traditional knowledge anyway, but I don’t expect you to accept that. Anyway, a patent to the active would not be infringed by use of it in native form (otherwise the patent would lack novelty).<br /><br />In response to your second point, indigenous communities are perfectly free to “commercialise their own TK if they are able to do so, or decide to patent it themselves and licence it”. Why do you suppose they are not? Why is any further legislation needed for this? And your point about relying on the exception requiring funds is not really apt either – if they don’t infringe then they don’t infringe. The world is full of people not infringing patents, we don’t worry about whether they can fund litigation that is not going to happen.<br /><br />I completely agree that “what is really desired is to be able to reap the benefits of TK”, but this rather contradicts your earlier point that it is all about concern on “future restrictions being placed on them using it”.<br /><br />This post is primarily not about Nagoya, which is about genetic resources, and the subset of TK that allegedly accompanies them. Nagoya is a done deal and there is not much point highlighting its weaknesses more than I have already done. The active issue now is the further treaty under negotiation that would deal with TK alone.<br /><br />I don’t know why you are so suspicious about recognition and assistance. It seems far more pertinent than the vague and poorly thought out proposals about creating some kind of sui generis protection for TK, with all the problems set out in my post.<br /><br />Best wishes<br /><br />Darren<br />Darren Smythhttps://www.blogger.com/profile/04252776942038752516noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-80035379310892744962015-07-16T20:33:23.460+01:002015-07-16T20:33:23.460+01:00Further
"The paradigm seems highly unlikely ...<br />Further<br /><br />"The paradigm seems highly unlikely in the first place, but even if someone were to try to patent TK, it would likely suffer from lack of novelty, unless the TK were secret" <br /><br />Patenting a modified gene sequence which does not exist in nature seemed highly unlikely too, yet it now happens. Would it really take that much to extract, isolate and purify whatever active compound it is in the plant variety used and claim it as the basis for a patent? <br /><br />"Country where it came from would be unlikely to be a place worth patenting it. Furthermore, there are exceptions to infringement in most patent laws for private, non-commercial use, which would likely to apply to indigenous communities in any case." <br /><br />Why should indigenous communities not be able to commercialise their own TK if they are able to do so, or decide to patent it themselves and licence it (thereby retaining control of their own assets). In any event, if they are forced to rely on an exception they will need the financial resources to be able to defend themselves against any future claims of patent infringement and are unlikely to have these at their disposal.<br /><br />The protection doesn't need to be in the form of a patent - it is clear from Article 5 of the Protocol what is really desired is to be able to reap the benefits of TK, whether these are monetary or otherwise. It seems a fair trade - they share TK and if this results in the development of drugs, vaccines etc these are shared on mutually agreed, fair and equitable terms. <br /><br />If this was a tangible asset, such as oil, coal etc. located beneath a group of indigenous people and a company simply turned up, drilled it, extracted the asset and disappeared without sharing any of the benefits with that community, it would be recognised as unfair. Why should it be any different for an intangible one? <br /><br />I agree that there are serious flaws with Nagoya, but "recognition and assistance" rather than legal protection is rightly to be viewed with suspicion.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-39036652331650944672015-07-16T20:32:35.644+01:002015-07-16T20:32:35.644+01:00Darren
In response to your post:
"Regardin...Darren<br /><br />In response to your post: <br /><br />"Regarding the turmeric example - you state it was a US patent, so it would not have affected the ability of anyone anywhere else in the world to do anything". <br /><br />So, apparently a US patent cannot be used as a basis upon which to claim priority for a patent anywhere else in the world now. <br /><br /><br />"The dispute was because the claimed invention was apparently not new, but US patent law at the time did not recognise disclosure abroad that was not in a written publication as novelty-defeating".<br /><br />Surely this emphasises the need for Nagoya? It was an argument against novelty that defeated the patent, with absolutely no consideration of TK. <br /><br /><br />"There are many cited examples of alleged expropriation of Traditional Knowledge that do not stand up to scrutiny." <br /><br />There are legion and they do: <br /><br />http://www.policyinnovations.org/ideas/innovations/data/000143<br /><br />http://sites.duke.edu/amazonbiopiracy/case-studies-of-biopiracy-3/<br /><br />https://en.wikipedia.org/wiki/Maya_ICBG_bioprospecting_controversy<br /><br /><br />"So at its heart is actually the idea that genetic resources and traditional knowledge have significant monetary value (which I think is a very questionable assumption), and that this should be shared with the place of origin." <br /><br />People only tend to patent what they believe they can commercialise (hence the requirement for industrial applicability). If it is a "questionable assumption" that TK has or might have monetary value, why are teams of researchers being diverted from other valuable R & D to investigate this (see the Chiapas/University of Georgia example above). <br /><br />"In any event, where is the slightest shred of evidence that anyone is seeking to patent TK in order to restrict its use by the indigenous communities from which it came, let alone being successful at it?"<br /><br />Here: http://www.ibtimes.com/indian-high-court-reinstates-criminal-proceedings-against-monsanto-its-partners-indias-first-case<br /><br />Note - "Critics of the GM eggplant claim that Bt Brinjal can result in the extinction of the crop's native varieties, which are believed to be cultivated across the nation".<br /><br />See also assorted controversies around "terminator seeds" particularly Mexican maize. <br /><br />http://www.nature.com/news/gm-maize-splits-mexico-1.15493<br /><br />These stories concern native plant varieties, known, cultivated and used by native people for centuries. <br /> <br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-77747390428909425212015-07-16T19:22:06.329+01:002015-07-16T19:22:06.329+01:00Darren
My comment on ecclesiastical law was in r...Darren <br /><br />My comment on ecclesiastical law was in response to the comment by Anonymous at 12.33, I should have made this clearer. S/he stated "it is not the job of the law to specifically protect practices which form part of a group's "cultural or spiritual identity". <br /><br />It is clear that the law does do this - in the form of Ecclesiastical law which concerns the governance of members of a church and further as concessions given to established religion, from protection from discrimination on religious grounds to bishops sitting in the House of Lords. <br /><br />Apparently it is only the cultural and spiritual practices of established religions that are worth protecting, which harks back to my earlier point on colonialism. <br /><br />This is off topic in any case. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-56329294197423224042015-07-16T16:41:33.699+01:002015-07-16T16:41:33.699+01:00Dear Anon at 14:48
I am not sure whether your res...Dear Anon at 14:48<br /><br />I am not sure whether your response is directed at me or the earlier commenter, but most of what you write is simply untrue or not supported by any evidence.<br /><br />You refer to the turmeric example. This often cited case suffers from a number of problems. As far as I am aware, the patentees were Indian, although working in the US. It was a US patent, so it would not have affected the ability of anyone anywhere else in the world to do anything. The dispute was because the claimed invention was apparently not new, but US patent law at the time did not recognise disclosure abroad that was not in a written publication as novelty-defeating. On any conceivable definition of Traditional Knowledge that the WIPO treaty might agree on, I cannot see how the use of turmeric would fit anyway (as I mentioned in my post).<br /><br />There are many cited examples of alleged expropriation of Traditional Knowledge that do not stand up to scrutiny. I discussed some in earlier posts.<br /><br />http://ipkitten.blogspot.co.uk/2013/12/eu-implementation-of-nagoya-protocol.html<br /><br />http://ipkitten.blogspot.co.uk/2013/12/nagoya-protocol-iii-traditional.html<br /><br />You say that “Nagoya seeks to address concerns from indigenous communities about the commoditisation of TK and future restrictions being placed on them using it.” It says nothing of the sort. What it actually says is that benefit from the utilisation of genetic resources (whether with or without Traditional Knowledge) must be shared with the country of origin, who then in turn is supposed to share it with the indigenous communities. So at its heart is actually the idea that genetic resources and traditional knowledge have significant monetary value (which I think is a very questionable assumption), and that this should be shared with the place of origin.<br /><br />In any event, where is the slightest shred of evidence that anyone is seeking to patent TK in order to restrict its use by the indigenous communities from which it came, let alone being successful at it? The paradigm seems highly unlikely in the first place, but even if someone were to try to patent TK, it would likely suffer from lack of novelty, unless the TK were secret (in which case how did the patent applicant get it?); and the country where it came from would be unlikely to be a place worth patenting it. Furthermore, there are exceptions to infringement in most patent laws for private, non-commercial use, which would likely to apply to indigenous communities in any case.<br /><br />Finally, it is not in relation to what I wrote, but ecclesiastical law relates to the internal governance of churches. It is not “law” in the sense of the law of a country (with a few exceptions in countries with established churches), and it does not "protect" anything.<br /><br />Best wishes<br /><br />Darren<br />Darren Smythhttps://www.blogger.com/profile/04252776942038752516noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-1777954504182588542015-07-16T14:58:16.957+01:002015-07-16T14:58:16.957+01:00The trouble is that this standpoint is predicated ...The trouble is that this standpoint is predicated on (barely) evolved colonial thinking - that we in the West should be free to exploit TK belonging to indigenous communities but we won't reciprocate and share our knowledge or resources with them (cue the fight over whether TRIPS has limited access to lifesaving drugs for third world nations). This post also ignores the realities - it isn't indigenous communities that are withholding or attempting to block access to TK, but researchers in the West attempting to patent (and therefore claim a monopoly over and prevent access to) TK. See for example, attempts by researchers in the US to file a patent with the USPTO for turmeric for use in wound healing; which was only finally revoked following a two year battle by India's Council of Scientific and Industrial Research. At its heart, Nagoya seeks to address concerns from indigenous communities about the commoditisation of TK and future restrictions being placed on them using it. <br /><br />All the criticisms made of TK could equally be levelled at IP in Europe/America and have been. Why does TK have to be shoe-horned into narrow and limited ideas of what qualifies for protection, when the law concerning what is protectable (especially copyright) is itself in a constant state of flux. Concerns about Nagoya on both sides of the fence need to be addressed. <br /><br /><br />It is not the job of the law to specifically protect practices which form part of a group's "cultural or spiritual identity" <br /><br />What is Ecclesiastical law then?!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-74226165724595866622015-07-16T13:31:36.585+01:002015-07-16T13:31:36.585+01:00Protection isn't just sought for "old&quo...Protection isn't just sought for "old" knowledge, but also for new knowledge and knowledge yet to be developed. The word traditional is therefore misleading as they request protection to be sought for all knowledge they deem to be traditional, the old, new (as it will be traditional one day!)and the yet to be thought up TK.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-21498915605919202612015-07-16T12:33:02.397+01:002015-07-16T12:33:02.397+01:00Good post. I can't see any justification whats...Good post. I can't see any justification whatsoever for "protection" of "traditional knowledge" (whatever it is).<br /><br />It is not the job of the law to specifically protect practices which form part of a group's "cultural or spiritual identity". If that group wants to keep doing them they are already in law free to do so (provided the practices do not contravene the law). If they don't want to use them any more (perhaps because modern medicine has come up with a better solution than turmeric), then that's also fine. Additional defensive protection, as WIPO puts it, is not required - if the knowledge is already in the public domain existing laws prevent its monopolisation by third parties.<br /><br />As for positive protection, why should very old public knowledge be afforded greater protection than less old public knowledge? The traditional communities are free to exploit TK, but can anyone offer any reasoned justification why other people who also have the knowledge should be prohibited from making use of it?Anonymousnoreply@blogger.com