Nagoya Protocol III - the Traditional Knowledge Paradigm

This is the third post from this Kat on the Nagoya protocol (see earlier pieces here and here).  Those pieces focused on genetic resources as such.  Now, as promised, this moggy will turn his claws to Traditional Knowledge.

The IPKat in search of
Traditional Knowledge
The Nagoya Protocol recognises, as it says,  "the unique circumstances where traditional knowledge associated with genetic resources is held in countries, which may be oral, documented or in other forms, reflecting a rich cultural heritage relevant for conservation and sustainable use of biological diversity".  This conception of Traditional Knowledge (TK), in the context of the Nagoya Protocol, conjures up another very appealing and believable image of indigenous people having custodianship of precious knowledge about the plants and animals surrounding them, and Western companies (it is always alleged to be Western companies) going round and hoodwinking them out of their secrets.  The Western companies then of course, according to this paradigm, go off and develop valuable medicines, file patents around the world, and make squillions of money from the knowledge that they have stolen off the indigenous peoples.

This Kat acknowledges that in the past there have been examples of biopiracy of this nature.  For example, the expropriation of rubber from South America to Asia somewhat fits with this scenario.

As stated in the previous post, examples that genuinely deserve the label "biopiracy" in recent times seem to be extremely rare, and those that involve traditional knowledge even rarer.  Even "bioprospecting" does not seem that widespread when seen against the totality of, for example, new drug development.  The list of top selling pharmaceuticals is not dominated by bioprospected compounds, as far as this Kat can see.

Notwithstanding this fact, proponents of the idea of the existence of traditional knowledge, and the need to protect it, press on with demands for ever wider schemes to protect this asset. Patents are unsuitable, we are told, because indigenous peoples do not in fact wish to publish this knowledge. What they would really like, apparently, is a perpetual monopoly over their knowledge, without having to go to the bother of recording it, revealing it, or sharing it, until such time as they decide that it has been taken from them.

Astonishingly, many European countries seem to be anxious to provide such protection.

Evidence, as ever, remains sparse. As Tim Roberts wrote in regard to biopiracy, "Many examples are produced, not all of which, when closely examined, exactly fit the paradigm". The examples that this Kat has seen tend to suffer from one or more of the following defects.

1) The knowledge alleged to have been taken is in fact well-known and public, and no possible proprietary rights can remain attached to it.

2) The knowledge that is in fact existed is highly diffuse, and much of it misleading. For example, if a researcher is told that a particular herb can be used to treat 100 different indications (or, conversely, that 100 herbs can be used to treat a particular indication), and in fact only one of them is subsequently validated, can it really be said that any useful information, other than the mere existence of a plant, has in fact been imparted?

3) What is being claimed in a patent application is different from what was known about the plant before

4) What is being claimed in a patent application (or at least the protection that is likely to be granted) is an isolated component from the plant whose structure and properties were previously unknown

This blog's esteemed former member Tufty the Cat reported on Spicy IP that many examples claimed by Traditional Knowledge Digital Library (TKDL) of invalidating patent applications based on ayurvedic medicine and other Indian traditional knowledge were in fact overstated. The inventions at issue were either not patentable for other reasons, or the alleged traditional knowledge was not germane to the claimed invention.

From time to time this Kat sees allegations that once again traditional herbal remedies are attempted to be patented by large corporations, but almost inevitably the allegations turn out to be informed by a woeful lack of knowledge of the patent system, and lack of understanding the claims at issue. The alarm is always overstated.

For example, in this unfortunate briefing note, it is alleged that TK relating to Nigella sativa is being expropriated.  Actually, the allegation that is substantiated in the note is that the invention is not new, in the perfectly normal, common way that many patent applications as applied for are not.  Even this does not seem to be actually true - the EPO seems currently minded to accept that the effect that is claimed (treatment of food allergy) is different from the prior art.  It would be churlish not to note, however, that the author does acknowledge that the plant "is widely cultivated" and so "the case is unlike biopiracy cases that involve illegal access to rare or endemic plants", and it is good to see this point being accepted.

By contrast, the anonymous filer of third party observations in the case considered that the patent should not be granted because, and I am not making this up, "Oral and written reports on the use of Nigella Sativa show that the Prophet Muhammad in the 7th century already knew that nigella sativa was effective against every ailment except death - this would include the use of nigella sativa to treat food allergies".  Of course the readers of the IPKat will not need me to point out how ridiculous this argument is.

Undeterred by the lack of any evidence that there is anything that needs protecting in any real sense, WIPO is pressing on with plans for yet another treaty to protect TK as such.  Noting that "While there is not yet an accepted definition of TK at the international level", it apparently "can be said that":

  • TK in a general sense embraces the content of knowledge itself as well as traditional cultural expressions, including distinctive signs and symbols associated with TK.
  • TK in the narrow sense refers to knowledge as such, in particular the knowledge resulting from intellectual activity in a traditional context, and includes know-how, practices, skills, and innovations.

Practitioners will know that people will often recognise their own ideas in something that they see later, even when, if viewed objectively, the later thing is actually quite different.  In the absence of clear anterior recordal, it is all too easy to say "that idea comes from the TK of this people" when in fact it is not true at all.

This Kat is troubled therefore that, not content with the Nagoya Protocol, which already arguably goes too far, WIPO is contemplating sponsoring a treaty that will give undue protection to a supposed repository of knowledge, that is incoherent and ill-defined, without due consideration to the huge negative practical consequences.

The Nagoya Protocol and its associated documents read as though its authors believe that most (or at least a significant proportion of) biodiversity and genetic resources are in the custody of and subject to the holding of Traditional Knowledge by indigenous peoples. This Kat considers that it is self-evident that certainly only a tiny fraction of the genetic resources in any country are "held" by anyone, let alone indigenous or local communities.  So it seems likely that only a tiny fraction of Access and Benefit Sharing (ABS) agreements entered into will have any involvement with indigenous peoples, since only if the genetic material is  "held" are indigenous peoples supposed to participate in the ABS.  This comes from consideration of the arithmetic - with estimates of plant and animal species in the world being of the order of millions; perhaps a few thousand might be the subject of specific TK in any country - the chances of any particular species being of the known ones is small.  And in the context of future developments, some of the most interesting resources could be bacterial and viral, which prima facie seem unlikely to be the subject of TK.  But a country can assert under Nagoya control over the whole of its genetic resources, whether the subject of TK or not.  So it seems to this Kat that the provisions of the Nagoya Protocol are not consonant with reality.

Nagoya Protocol III - the Traditional Knowledge Paradigm Nagoya Protocol III - the Traditional Knowledge Paradigm Reviewed by Darren Smyth on Monday, December 16, 2013 Rating: 5


  1. I agree with a lot of your comments as to the relationship between what is claimed in a patent and traditional knowledge. Isolating the active ingredient, verifying its properties etc, is valuable work and worthy of patent protection. However patent protection can often have an aggressive strategy. Broad claims can arguably cover chewing on leaves of the plant, and really opposition or litigation is often needed to peg the claims back to a fair scope. There can be multiple filings protecting different aspects of using a product. That is valid in a developed world litigation-savvy environment. However is it appropriate in a traditional knowledge situation? I think if some type of protection is not in place for traditional knowledge then patent protection will be abused, even though the patents have been obtained by fair means.

  2. Can we look forward to TK and GR trolls?

  3. With respect to “trolling”, the underdeveloped remedial scheme of Nagoya does make ex post bargaining in the face of sunk costs possible, and even likely. Suppose it is well known (not just TK) that a common plant which is widely distributed throughout the world has a poisonous sap. Company A identifies the active compound, sequences the relevant gene, modifies it, and thereby develops a successful drug for treating cancer. Under Nagoya, Company A would be required to share the profits with the Country X which happened to be physical source of the particular plant that was the source of the genetic material that was sequenced. (Yes, notwithstanding that there was nothing rare or unknown about the plant - that Country X provided the genetic resources is enough.)

    Now, the actual value contributed by Country X is only the incremental value over the next best alternative - that is, the value of not having to go to Country Y to get the same plant. But what must be shared under Art 5 is “benefits arising from the utilization of genetic resources as well as subsequent applications and commercialization,” which must be shared in a “fair and equitable way.” It seems likely that this would mean the full value of the final product must be shared, not just the incremental value of Country X’s contribution. That is exactly the holdup problem which is at the heart of trolling, and which is currently at issue in the FRAND debate. If Company A knows this in advance, it can enter into an ABS agreement and bargain down the value of access to the incremental benefit; but, as I noted in a comment to a previous post, inadvertent infringement of the ABS right is entirely possible. Again, this is very similar to the problem of patent rights that are difficult to discover ex ante, which gives rise to trolling. See the IPIC submission referenced by Darren in Sunday’s post for further discussion of this point. I hesitate to use the term trolling, with its pejorative implications, for a right that is intentionally given by an international convention, but the effect from the “infringer’s” perspective is the same as trolling. That is why the details of how it is implemented will be crucial.

  4. I am trying very hard to prove that I am not a robot and lost the previous response I wrote. In brief, the ignorance cuts both ways. Just as many critics of businesses fail to comprehend patent law, many (most?) practitioners and businesses have no idea that customary laws and practices may exist that regulate access and use of traditional knowledge and associated genetic resources. There is a clash of values, norms and laws, and the ignorance cuts both ways.

  5. Yes, IPKat's anti-robot system is a pain - another example of over-regulation!

    It is absolutely true that there is a clash of values, which can lead to uncertainty and perhaps in some cases injustice. But this is not sensibly dealt with by spreading the uncertainty with a trowel over all biological resources - as Nagoya threatens to do.

    PS I see I'm now being offered a captcha consisting solely of legible figures. Here's hoping that this is an omen that Nagoya also can be modified so as to be practical!


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