Traditional Medicine in Asia

Traditional Medicine in Asia
invention thereof by the applicant for
patent, or
(b) the invention was patented or
described in a printed publication in
this or a foreign country or in public
use or on sale in this country, more
than one year prior to the date of the
application for patent in the United
States... (35 United States Code
No.102).
This means that TM knowledge which
has been published in a written form in the
United States or in any other country is not
patentable. But if such knowledge was publicly
used but not documented in a foreign country,
novelty is not lost.
As a result of the relative novelty
requirement of the US, several patents
have been granted to researchers or firms
from developed countries by the US Patent
and Trademark Office relating to or
consisting of genetic materials or
traditional knowledge acquired in
developing countries.
232
16, 17
This appropriation (or “biopiracy”) has
involved resources protected “as is”, that
is, without any further improvement (e.g.,
US patent No. 5.304.718 on quinoa
granted to researchers of the Colorado
State University) and on products based on
plant materials and knowledge developed
and used by local/indigenous communities,
such as the cases of the neem tree, kava,
barbasco, endod and turmeric (see below),
among others, etc. 18
A telling example was the case of
ayahuasca,(Banisteriopsis caapi), a plant
native to the Amazonian rainforest that
thousands of indigenous people of the
region use in sacred religious and healing
ceremonies, as part of their traditional
religions. The US Patent and Trademark
Office (PTO) issued a patent to a US citizen
for the “ayahuasca” which was
subsequently revoked by the same Office
in November 1999. The PTO based its
rejection of the patent on the fact that
publications describing Banisteriopsis
caapi were “known and available” prior to
the filing of the patent application. xiii
As discussed below, in order to prevent
the appropriation by third parties under
patents of traditional knowledge, there
have been initiatives to develop proper
written documentation of such knowledge.
It is assumed that if the material/knowledge
is documented, it can be made available
to patent examiners the world over, so that
prior art in the case of inventions based on
such knowledge is readily available to them.
It should be noted, finally, that in some
countries (United States, Argentina,
Mexico) the publication made by the
inventor within one year prior to the date
of application for a patent does not destroy
novelty. This “grace period” is particularly
useful for the protection of research results
obtained in universities and other public
institutions, where researchers are usually
under pressure to promptly publish their
findings. A possible way to allow for the
patentability of TM may be to establish a
special “grace period” for inventions
pertaining to this field whenever claimed
by the communities or individuals that
legitmately developed or possessed them. 8
This would certainly expand the scope of
patentability in cases where it would have
been excluded by the application of the
novelty requirement standard.
xiii The PTO’s decision came in response to a request for reexamination of the patent by the Coordinating Body for the
Indigenous Organizations of the Amazon Basin (COICA), the Coalition for Amazonian Peoples and Their
Environment, and lawyers at the Center for International Environmental Law (CIEL).