Traditional Medicine in Asia

Traditional Medicine in Asia
country of origin. Patent owners enjoy, in
effect, the right to prevent any commercialization,
including imports, of a patented
product. xl
A similar problem may be faced if the
plant varieties used to produce a TM
product were protected under breeders’
rights in the country of import. Breeders’
rights are a type of intellectual property
rights that are exercised in respect of
propagating materials of plant varieties.
The UPOV (Union for the Protection of Plant
Varieties) Convention provides an international
framework for the protection of
such varieties. The TRIPS Agreement has
obliged all WTO Member Countries to
provide a patent or an effective “sui
generis” protection (or a combination of
both).
If breeders’ rights were obtained by
unauthorized parties on plants used for TM,
the countries of origin thereof would also
find a serious barrier, since breeders’ rightholders
enjoy a similar set of exclusive rights
with regard to imported products.
Finally, it should be borne in mind that
many medicinal plants face extinction or
severe genetic loss. Overexploitation of
such plants in order to satisfy export
demands can aggravate these risks.
Hence, governments should control trade
in medicinal plants in the framework of
broader policies for the conservation and
sustainable use of such plants. Peru, for
instance, passed a law in July 1999 which
bans the non value-added export of some
botanical species with known healing
properties, which had become the target
of massive extraction by foreign laboratories.
The law covers the two best-known
medicinal plants in Peru’s indigenous
pharmacopoeia: ‘cat’s claw’ and ‘maca’;
and legislators are considering expanding
xl See article 28 of the TRIPS Agreement.
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the norm to cover other products (‘yacun’
and ‘para-para’).
Conclusions
TM plays an important role in the health
care systems of developing countries. The
diffusion of TM products is also significant
in developed countries. The commercial
value of TM has raised divergent views on
the need and scope for protection of TM
under IPRs. Some governments, scholars
and NGOs have voiced the need to protect
TM under existing or new forms of IPRs
protection, as a means to recognize and
compensate the creators and possessors
of such knowledge. Others object to that
possibility for ethical, economic or other
reasons. However, there is, in general,
agreement on condemning “biopiracy”,
that is, the unauthorized appropriation
under Western IPRs systems of traditional
knowledge and biological materials.
The concept of TM embraces different
categories of knowledge that may be
subject to various types of IPRs, if the
conditions for protection are met. Several
components of TM, including products and
processes and, in some countries, uses and
methods of treatment, can be covered by
patent rights. In fact, a large number of
patents have been granted in relation to
natural products, combinations, extracts
and preparations thereof, as well as
processes of production. The application
of patents to TM, however, faces important
obstacles, in particular due to the novelty
requirement and to the costs and
complexity of procedures before patent
offices.
While designing national policies on
TM, a careful assessment of the possible
objectives and implications of IPRs