What Does It Mean to Patent Traditional Knowledge or Genetic Resources?
First, let me clarify what this topic doesn’t mean. You can’t patent “knowledge” itself—that’s not a thing. And you also can’t patent human genes anymore, at least not in the U.S. Even when gene patenting was allowed, it didn’t mean someone could say they owned the gene that’s in your body.
So what does this have to do with indigenous people, and why am I bringing it up now?
A New WIPO Treaty
A new treaty was just signed under WIPO, which stands for the World Intellectual Property Organization. The treaty is titled the WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge.
This mostly comes into play in the context of medicinal patents. A lot of medicines and treatments don’t originate in a lab—they often come from indigenous communities that have used certain plants for thousands of years to treat ailments. These communities may not know the underlying chemistry, but they know from experience that certain plants are effective.
How Biotech Companies Use Traditional Knowledge
Then, a pharmaceutical company comes along, learns about the plant, isolates specific compounds, studies them in the lab, and eventually patents the isolated compound or a method of treatment.
You might ask: “How can they patent that? Isn’t it a product of nature?”
That’s a good question—and the answer lies in the word “isolated.” The naturally grown plant is not patentable, but the isolated compound extracted and purified in the lab can be patentable. It’s considered not a product of nature once it’s been isolated and modified for a specific use.
Furthermore, even if the compound itself is not new, you can still patent a new method of using it. For example, if you discover that rubbing a certain plant on your scalp grows hair, you could potentially patent a “method of treating baldness comprising the step of rubbing the doohickey plant on the scalp.”
Now, this doesn’t mean you “own” the plant or that people can’t grow or sell it. But it does mean someone else can’t sell the plant with instructions to rub it on your scalp to grow hair—that would be considered patent infringement.
The Problem of Biopiracy
Many people, particularly from indigenous groups and their advocates, argue that this is biopiracy—where companies exploit traditional knowledge without compensation or recognition.
There are a couple of major problems here that the WIPO treaty is trying to address:
1. When inventors file patent applications, they must disclose prior art. But what if the relevant knowledge is oral, passed down through generations, and not in any searchable database?
2. Patent examiners typically search scientific journals and published patent applications—not oral traditions or community knowledge.
Real-World Examples
Here are a few real-world examples:
• Turmeric: Used in India for wound healing for centuries.
• Neem Tree: Used for reducing tooth plaque, treating lice, lowering blood sugar, and more.
• Hoodia Cactus: Used by the San people in Southern Africa to suppress hunger. The South African Council for Scientific and Industrial Research patented its use and sold the rights to Unilever, without initially recognizing the San people’s traditional knowledge.
There was also a case involving the ayahuasca vine found in the Amazon rainforest. A plant patent (Plant Patent No. 5751) was issued for what was claimed to be a new variety, but indigenous communities considered the plant sacred and objected to the patent. You can find more about this by Googling “Plant Patent 5751 ayahuasca.”
What the New Treaty Does
Under U.S. law, applicants already must disclose information material to patentability, but this treaty adds further requirements when the invention is based on genetic resources (non-human biological material) or associated traditional knowledge (knowledge passed down within indigenous communities).
Applicants must now disclose:
• Whether their invention is based on genetic resources or traditional knowledge
• The country of origin
• The indigenous people or community that provided the traditional knowledge
What Happens If You Don’t Disclose?
If an applicant fails to disclose this information, countries that are parties to the treaty are expected to impose “effective and proportionate” sanctions. However, the treaty does not allow revocation of the patent solely for failure to disclose—unless there’s additional evidence of fraudulent conduct or intent.
So, while there may be sanctions, such as requiring a license or profit-sharing arrangement, the patent itself won’t be invalidated just for nondisclosure.
Databases and Information Systems
The treaty allows (but does not require) countries to create databases of genetic resources and traditional knowledge in consultation with indigenous communities. These databases could theoretically help patent examiners access non-traditional sources of prior art.
Does the Treaty Have Teeth?
Honestly, it’s unclear how much impact this treaty will have. It doesn’t prevent patents from being issued. It doesn’t mandate compensation or require consent from indigenous communities. What it does do is require transparency—disclosing the source of traditional knowledge and genetic material.
It might help patent examiners conduct better prior art searches if they know to consult databases or other resources connected to a specific region or community. But the practical effect may be limited unless stronger enforcement mechanisms are created.
Final Thoughts
So that’s the background of genetic resources, traditional knowledge, and the printed matter of patent law as it relates to indigenous communities. While the new WIPO treaty may not revolutionize the patent system, it’s a step toward greater recognition of the contributions of indigenous people to innovation—particularly in medicine and plant-based technology. Until next time, I’m Adam Diament, and keep on inventing!