Traditional Medicine in Asia

Traditional Medicine in Asia
On the other hand, the appropriation
of such knowledge and/or the related
biological materials under IPRs by
unauthorized parties has raised significant
concerns, particularly in developing
countries where there is a long and
significant tradition in TM. Those concerns
have been generated by several cases of
patenting in developed countries, of plants,
their compounds or uses derived from TM,
without fair compensation to those who
have preserved and made available such
knowledge.
This chapter examines the extent to
which patents may be utilized to protect
certain aspects of TM or the materials used
in traditional treatments. It considers, first,
the concept and components of TM.
Second, the patentability of different
modalities of TM is examined, including
products, processes and uses. Third, the
nature of alternative modes of protection
is briefly described and some measures to
promote the use of TM are discussed.
The concept of “traditional
medicine”
In order to examine the application of IPRs
to TM, a first essential step is to clarify the
meaning of this concept, and its different
components. TM is a very broad term,
comprising indigenous or “tribal” people’s
knowledge, farmers’ or “rural” traditional
knowledge and regionally bound traditional
knowledge about the “healing”.
According to the definition provided by
WHO’s Traditional Medicine Programme,
TM is:
“The sum total of all the knowledge and
practices, whether explicable or not, used
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in diagnosis, prevention and elimination of
physical, mental or social imbalance and
relying exclusively on practical experience
and observation handed down from
generation to generation, whether verbally
or in writing”. v
TM thus encompasses different types
of knowledge. Distinctions can be made
on the basis of its subject matter, the level
of codification, the individual or collective
form of possession, the usability and
commercial value, and the degree of prior
disclosure of the relevant information. As
discussed below, these factors may have
important implications with regard to the
extent to which patents can be applied in
this area.
Subject matter
The subject matter of TM may basically refer
to different categories of knowledge:
a) The properties of certain biological
materials used in isolation, in their wild
form, or as part of a preparation or
mixture. Such materials include phytomedicines
or “herbal medicines”, as
well as animal parts and minerals.
Though the concept of TM is often
linked to plant-based medicines,
animal-based medicines have played
a significant role in the healing
practices, magic rituals, and religions
of indigenous and Western societies.
In fact, of the 252 essential medicines
selected by the World Health
Organization (1999), 11.1 per cent
come from plants and 8.7 per cent are
derived from animals. 4, p.6 A large
number of medicinal plants are used
in the folk traditions as well as in other
systems of TM. vi
v See 5.
vi It has been estimated that around 7500 plant species are utilized in indigenous medicine, many of which (such
as indigo) have multiple uses. see, e.g., 6, p. 170.