December 8 Reading Notes
The US Approach: Genetic Resources, Traditional Knowledge, and Folklore
The United States respects and recognizes the importance of protecting genetic
resources, traditional knowledge, and expressions of folklore by facilitating equitable
benefit sharing, eliminating erroneously issued patents, eliminating misappropriation of
traditional knowledge, and preserving expressions of folklore.
In 1993, the Convention on Biological Diversity came into force. It represents a
commitment by nations to conserve biological diversity, to use biological resources
sustainably, and to share the benefits arising from the use of genetic resources fairly
Article 8j of the convention draws a connection among traditional knowledge, folklore,
and genetic resources by calling on nations to respect, preserve, and maintain
knowledge, innovations, and practices of indigenous and local communities and to
promote wider application with the approval of the holders of such knowledge and
WIPO member states established an Intergovernmental Committee as an international
forum for discussing the relationship between intellectual property and genetic
resources, traditional knowledge, and folklore.
The concerns of traditional knowledge holders within the United States and other
countries include: loss of traditional knowledge; lack of respect for traditional
knowledge, the misappropriation of traditional knowledge, including use without
benefit sharing and offensive use, and the need to preserve and promote the use of
Some holders of traditional knowledge fear that others will seek patents based on their
long-held knowledge and reap the benefits from it. But an applicant trying to patent
traditional knowledge likely cannot meet the three necessary requirements. Traditional
knowledge is already known, so if it has been documented, it is no longer new.
The ability of a third party to request reexamination and the eventual cancellation of the
claims when a mistake has occurred demonstrate that the current patent system works
well to correct itself.
The importance of publishing traditional knowledge and making that information
available to patent examiners internationally cannot be overemphasized. If traditional
knowledge is documented, that knowledge may not be the subject of a patent, even if it
is not widely known in an industrialized country.
Some traditional knowledge holders might want to keep certain aspects of their
knowledge secret or limited to specific individuals or groups. If so, they may want to
take steps to guard their knowledge as a trade secret.
Some holders of traditional knowledge want to be sure that any new discoveries derived
from their traditional knowledge include an equitable sharing of benefits. These
communities may want to negotiate contractual benefit-sharing agreements regarding
new products or processes created through research using their traditional knowledge. The Indian (Native American) Arts and Crafts Act prohibits the marketing of products
misrepresented as Native-American made.
Inclusion of official insignia in the Database of Official Insignia of Native-American Tribes
ensures that an examining attorney will be able to identify any official insignia that may
preclude registration of a mark where the mark suggests a false connection with the
All trademark applications containing tribal names, recognizable likenesses of Native
Americans, symbols perceived as being Native American in origin, and any other
application that the USPTO believes suggests an association with Native Americans are
examined by an attorney at the USPTO who has developed expertise and familiarity in
Where the U.S. government, including the National Cancer Institute is involved in
genetic resource research in other countries, it enters into benefit-sharing agreements
with those countries to gain fair access to genetic resources and/or traditional
Agreements provided the source countries with short-term benefits that would accrue
without having to wait and see whether promising discoveries were derived from their
resources. The benefits included training source-country scientists in NCI laboratories or
US universities’ laboratories and technology transfer.
The chances of a discovery becoming a commercial product is usually said to be one in
NCI requires that, if a promising potential drug is discovered and licensed to a
pharmaceutical company, the company must negotiate an agreement so that benefits,
such as part of the royalties, will be returned to the country.
The U.S. government also requires a contract when companies want to collect genetic
resources from federally owned lands or from the approximately 56 million acres of land
the federal government holds in trust for U.S. tribes and individual Native Americans.
Enforcement: A priority for All Countries
Many countries have laws on the books that are TRIPS-compliant, but that much
remains to be done to actually enforce those rights at the borders and in the civil and
criminal court systems
US and other rights holders around the world are reluctant to invest in countries where,
on a day-to-day basis, copyrights, patents, trademarks, and trade secrets are not
The most critical obstacle to effective enforcement is the absence of a full
understanding of the value of intellectual property rights to every nation that engages in
If you don’t respect intellectual property rights, no one wants to invest in your country.
You won’t attract the foreign capital that you need to improve the lifestyle of your
If a country allows piracy to go unchecked, its own industries – music, or film, or
software – will likely find their own products being pirated along American ones. Since the domestic creators of music, or movies, or software, tend to rely more heavily on
their own domestic markets for their livelihoods, a high level of piracy at home may hurt
these domestic producers most of all.
Piracy can make it even tougher for domestic industries to compete with large foreign
companies. In countries where every kind of CD, DVD, or software is available for a
couple of dollars per disc, a local film studio or software publisher will find it very
difficult to compete, based on price, with the latest Silicon Valley software or Hollywood
It’s reasonable, if you don’t have the resources to have a database of all the intellectual
property rights that might be infringed, to at least have a mechanism so that others can
bring information to your attention.
A country can be fully in compliance with the minimum obligations of the TRIPS
agreement and still have a huge