Traditional Medicine in Asia

Traditional Medicine in Asia
case. There are spiritual components in the
TM peculiar to each community. Knowledge
that cannot be utilized beyond its communal
context has little or no commercial value,
despite the value that such knowledge may
have for the communal life. 3
Herbal medicines and other TM
products may be commercialized domestically
or internationally, subject to compliance
with national sanitary laws. There is
no limit, hence, to their commercial
exploitation. A major issue, still unresolved,
is the sharing of benefits with the
individuals/communities which provided
the relevant knowledge. 12
Disclosure
Most TM is of a non-contemporary nature.
It has been used for generations and in
many cases collected and published by
anthropologists, historians, botanists or
other researchers and observers. 3 Disclosure
erects an important barrier for the
application of some forms of intellectual
property protection, notably patents.
However, there are cases in which TM
is being kept secret. In specialized areas,
in particular, for example bone-setters,
midwives or traditional birth attendants and
herbalists, knowledge of different plants
and healing techniques is restricted to
certain classes of persons, and the healing
properties of particular plants are often
undisclosed. 9
Moreover, like other types of traditional
knowledge, TM is not a static body of
information; it continues to evolve with the
practices of the individuals/communities
that held and use it. 13 This evolution may
give rise to new knowledge, which may
meet, as described below, the requirements
for protection under intellectual property
rights.
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Can TM be patented?
Patents protect inventions, that is, new,
non-obvious technical solutions. Patents
are granted by a Government authority
and confer the exclusive right to make, use
or sell an invention generally for a period
of 20 years (counted from the date on
which the application for the patent was
filed). In order to be patentable, an
invention usually needs to meet the
requirements of absolute novelty (previously
unknown to the public), inventive step
or non-obviousness, and industrial
applicability (or usefulness). Patents may
be granted for all types of processes and
products, including those related to the
primary sector of production, namely
agriculture, fishing or mining.
Patents are conferred in many
countries to protect inventions based on
or consisting of natural substances
(including genetic materials), plants and
animals. Patents, as discussed below, can
also be granted in respect of the use of a
product and of methods for diagnostics as
well as for surgical and therapeutic
treatment. Though there are important
differences among national laws on the
subject matter of patent protection, at least
in principle patents may be applied to
different components of TM, provided that
the above-mentioned patentability
requirements are met.
There are, however, several major
obstacles to affording patent protection to
existing TM. One such obstacle stems from
the legal standards established by national
laws to acquire patent rights.
Novelty
The universal novelty requirement, as
applied in most countries, prevents the
patentability of an information which
belongs to the “prior art”, that is, which
has been published in a written form or