At least one prominent South African IP academic, Professor Owen Dean, considers this a mistake, describing the initiative as Mad Hatter in Wonderland,  See here. 

South Africa was represented at the WIPO Traditional Knowledge conference in Israel last month. See Israel Hosts International Conference on Traditional Knowledge

We note that South Africa does not examine patents prior to issuing them, and only reviews their validity prior to enforcement in the courts. this anachronistic state of affairs has resulted in patents issuing for well-known inventions.

We applaud Li Maor who sits at the WIPO desk handling Israel, for pushing to host the event in Israel and for the work she must have done behind the scenes in persuading WIPO to fund the program. Bringing academics and civil servants to Israel is good for Israel’s image, and good for tourism.

WIPO sponsored the flights and hotels, and also a reception for the participants. Ono provided the venue and refreshments, and raised additional funding for some touring. The Israel Patent Office also chipped in, hosting a final session in Jerusalem, with a second reception.

Part of the program, consisted of closed sessions where official delegates debated how to advance the agenda of an international treaty on traditional knowledge. The first day and a half were open to the public.

After speeches by WIPO and Ono representatives, Prof. Braverman, an economist who is a member of the Labour Party gave a nice welcoming speech, slightly marred by him acknowledging that he wasn’t really sure what the event was about or what he was doing there.

The main program was opened by Prof. Shuba Ghosh of the University of Wisconsin gave the keynote address, explaining what Traditional Knowledge is. Dr. Shlomit Ravid, the coordinator of the event from Ono gave a second general lecture, posing questions rather than providing answers. She illustrated her position with examples from local culture and concluded that traditional knowledge cannot be considered as property per se. but can perhaps be considered as being a type of quasi-IP. We note that Intellectual Property is itself only a quasi property right, and feel that an explanation of what she meant by a quasi-IP right and the ramifications thereof would have been useful.

Each speaker was followed by a respondent. One Russian representative actually attempted to respond to points raised, but was handicapped by poor English. Other respondents simply presented their work to protect or capitalize on their national traditional knowledge resources.

What was unfortunate is that the program lacked balance. There was a clear agenda to create rights for indigenous peoples in their traditional knowledge (or TKs). Wend Wendland, the Director of the Traditional Knowledge Division at WIPO, went so far as to explain that there is a timeframe to create a treaty within the next 12 months and that the event is perhaps the most significant IP development since TRIPS.

There was, however, no rigorous philosophical underpinning presented to justify the new right. The traditional IP rights attempt to strike a balance between the creator and the public domain with the patent system and copyright both being designed to reward creativity, thereby providing an incentive to create and to expand human knowledge and cultural expression. The rationale for rights in traditional knowledge was not adequately explained and I suspect, is not there.

Rigorous academic analysis was most conspicuous by its absence.  For example, Dr. Nicholas Bramble of Yale University noted that Vincristine, extracted from the Madagascan Periwinkle is used to treat Hodgkin’s disease. Though the plant’s beneficial properties were known in folk medicine for hundreds of years, the Madagascans never received anything from the development of the drug by Eli Lilly resulting in them doing significant ecological damage to their environment to generate income.  Bramble’s position is based on an assumption that the natives of Madagascar have rights to financial compensation for research into plants that were used in traditional Madagascan folk medicine and a further assumption that there is a causative link between the lack of compensation and ecological damage to Madagascar. Eli Lilly discovered the bone marrow suppressive properties in experiments on mice with leukemia. One can assume that the Madagascan population had no traditional knowledge of  leukemia or of the function of bone marrow. I suspect that the same ecological damage over the past 50 years since this discovery would have occurred regardless of whether the indigenous population would have received some type of royalty, since having one source of income does little to deter exploitation of other sources.

I found myself wondering why no one had thought to extract some payment from Disney on behalf of the indigenous population, subsequent to their depicting the fauna, flora and beaches of the island in the animated movie Madagascar?

One of the clearest and most interesting presentations was by Dr. Sheila Foster of Fordham University who gave some insights into land use decisions in an urban context. She admitted that she had no background in IP, but felt that her field of research could provide some insights. Unfortunately this is not the case. The insights learned from her field of research relate to maximizing usage of limited resources, and to the value of providing property rights to such resources so that they are managed properly. Knowledge is, however, not a limited resource.

There is value in conserving biodiversity and cultural expressions of all sorts to enrich the human experience. This could place a responsibility on countries and populations, but is not a justification for their having commercial rights to their traditional knowledge. I think the mandate for so doing is not WIPO’s but really belongs to UNESCO.

It’s not merely that knowledge is not a limited resource and that present day indigenous people have not created their traditional knowledge and providing rights over it does not encourage the creation of additional traditional knowledge, although could certainly encourage the classification of more knowledge as such.  No one addressed the issue that the flow of knowledge and wealth occurs in both directions. The third world can access vast amounts of knowledge created in the developed world and published in patent literature and academic journals without contributing substantively to its creation. This knowledge is paid for using Western taxpayer’s money. The developed world also contributes to health in the developing world via the World Health Organization, via charities such as Medicines Sans Frontiers (Doctors Without Borders) and Oxfam. The great capitalists like Bill Gates often donate vast sums to philanthropic works. I suspect that the funding for this conference originated in the developed countries as well…

The program was advertised in the Israel press.  WIPO also sent direct emails to Israeli IP practitioners and ONO contacted their graduate lists. Unfortunately, the attendance on the first morning was, by my count, around 50, which dropped to 30 after lunch. (One of the orgnaizers from ONO claims 65 dropping to 40, but I was counting people in the room). WIPO provided a reception on the first day, catering for some 200 participants. Apparently less than 30 people stayed for this. Due to a family Bar Mitzva celebration, I couldn’t stay for the WIPO reception, but attended the academic program, or at least as much of it as I could, since everything was running appallingly late.  The second day also attracted a mere 30-40 participants. In other words, apart from speakers, organizers and guests flown in by WIPO, the event was patronized by two other patent attorneys, one of whom left at lunch time on the first day, and one professional from a tech transfer company.

I think that there a number of reasons for the poor turnout by local practitioners. These included a clear political agenda to the event, rather than a proper academic inquiry. This was evident from the adverts in the press, linking the event to social justice demonstrations, through the invitation to a Labor Party parliamentarian to open the event, to the lack of balance in the program without any presentations suggesting that traditional knowledge is not a commercial property.  The topic of traditional knowledge is also fairly esoteric and of less practical relevance to practitioners than, say, the recent patent reform in the US.

In the wrap up session on the second day before adjourning to tour the sites of Jerusalem, patent examiners and Dr. Moshe Tritel, who heads the life sciences division of our firm, related to where patent law is with regards to medical treatments and traditional knowledge. Moshe spoke excellently, clearly and with authority, but, as would be expected from a patent attorney rather than a political activist or academic, described the rationale for the current system and explained how the patent issues for the contribution over that previously known if not previously revealed, and doesn’t award all previous contributions. He suggested that IP law wasn’t the place to address third world grievances. Not surprisingly, the representatives of Ecuador and Tanzania, found his position a little unpalatable.

Adv. Eliamani Laltaika of Tanzania gave an excellent and impassioned response. One point he raised was that the geographic source of plants of animals whose tissues were used in a product should be acknowledged in the patent specification. This idea was rejected by Dr. Tritel as placing additional burdens on inventors.

It occurs to me that it should be hardly more difficult from the duties of disclosure of prior art existing in Israel and the US, and on the practice of the EPO and other offices to require certain information such as closest publications, referenced in the background of the patent specification. Judaism  has a long tradition of recognizing the moral rights of sources of traditions, knowledge, intelligence and sayings, to be named. Occasionally, where individuals are not known, the nationality or ethnic source of knowledge is recognized. The academic community references sources of ideas. Where something is traditional knowledge or where a plant comes from a geographic location, I see no reason not to reference this.

Academics who should have known better, pointed to the success of various developing countries in amending their IP laws to require incorporation of such sources.  Many Western corporations don’t bother filing in such countries, due to the lack of commercial justification for so doing.

I suspect that the lack of involvement by patent attorneys and IP lawyers in the development of the program contributed to the lack of interest by the profession in the end result. Of course, if an international treaty having more substance than the vacuous drafts currently available from WIPO does get wide ratification, this could change the IP world significantly and lawyers and patent attorneys may be surprised.

The report is also available in Chinese and Portuguese and is due to be translated into Spanish, French and Dutch in the near future.

This year’s report is the eighth edition, which is revised every year by an international team of ICC experts.

It addresses the opportunities and obstacles posed by the rapid rise of the Internet and the increase in disputes over intellectual property rights. It also includes an updated section on enforcement, highlighting the urgent need for adequate resources to uphold the laws.

It is hoped that the lack of a Hebrew version indicates, than unlike in the US, the ICC believes that the enforcement in Israel is acceptable. Then again, it may simply reflect the high degree of English literacy in Israel. 

The Indian Health Ministry is taking up the issue directly with the USPTO and the Indian Commerce Department is writing to the US Trade Representative against what India sees as a violation of rights over traditional knowledge.

The Indian Government has declared its readiness for a legal battle to get the patents and trademarks voided, claiming that the USPTO has been careless in granting patents and trademarks in matters related to traditional knowledge.

Bikram Choudhury applied for a patent on yoga practised in a steam-room. “It’s ridiculous to even think that an asana which has been practised for several years can be patented just because they think it is different. They have not been looking at the digital library,” claims an Indian official.

India is essentially telling the US authorities that there is a digital traditional-knowledge library, which includes much readily available and searchable reference material, and, where applicable,a proper search should be done before the USPTO grants a patent.

When governments get involved in the day to day work of other countries, particularly over what seems to be a minor issue or one of principle, it is worth looking for major financial ramifications and trying to read the subtext.

In this case, perhaps because I am a member of the stiff-necked people, I don’t think the real issue is Yoga at all. US Pharmaceutical Companies are being undercut by both Indian and Israeli Generic Companies who regularly manage to get patents voided because of lack of novelty.  For example,  recentlyUnipharm – an Israeli generic manufacturer – won an appeal and voided Merck’s Fosalan Patent as lacking novelty and inventive step. See http://blog.ipfactor.co.il/2007/05/17/israel-supreme-court-clears-unipharm-of-patent-infringement/

The USPTO examiners tend to confine their searches to US patent databases only, arrogantly forgetting that some inventions are patented in other countries such as the UK, or even in other languages, such as German, French and Japanese. Nor does a publication have to be part of the patent literature to be prior art that render an invention as lacking in novelty or inventive step. Unipharm voided the Merck Fosalan patent after showing that the inventors published a poster at a conference prior to the patent application being filed.

In the US with its quirky firt to invent rule and grace period, the patent is valid. It was voided in Israel and is similarly invalid elsewhere.
  
The US steam-rolled a contraversial patent term extension mechanism for pharmaceuticals as a way of protecting their own industries. The legislation which has been adopted by other so-called Bolar companies, has more to do with finance than with inventions, and little to do with promoting public health. In the past it will be noted, many countries didn’t even allow medical treatments to be patented at all.

Israel appears on the US Blacklist, allegedly for Copyright Infringement, but, I believe, more because of the success of companies such as Taro which was recently sold to an Indian company and Unipharm and Teva. See http://blog.ipfactor.co.il/2007/05/01/israel-remains-on-the-us-priority-watch-list-for-alleged-copyright-piracy/

India and China have also come under heavy US criticism, with the US threatening to take China to the WTO disciplinary committee. It may be worth remembering however, that despite the moral tone that the US spokesman takes when referring to poor levels of property and rights protection abroad,  the US set up the WTO and pushed through GATT as they didn’t have enough weight to control the WIPO which is a democratic organization with one vote per country. Now though there are some small states with numerically  insignificant populations (such as Israel), some countries such as India and China, for example do have large populations.  Third World governments view GATT simply as an attempt to keep wealth with the Western Nations.