This article explores the interaction between current intellectual property regimes and traditional knowledge and concludes that national laws currently in place inadequately protect traditional knowledge holders. When property rights are granted on traditional knowledge, the effects can extend not only to the indigenous communities, but to the surrounding ecosystems and the global market. Commercialization and increased demand leads to shortages in natural resources and increased prices. Therefore, in order to ensure that patent applicants are deterred from acquiring property rights in traditional knowledge, as well that traditional knowledge holders receive proper benefits for their labor and knowledge, this article advocates for an addition to the TRIPS Agreement under Article 61. The amendment would mandate that signatory nations implement criminal procedures and penalties to be applied in cases where a patent is knowingly obtained, or an application for patent is knowingly filed, for subject matter that is not novel or non-obvious based on the prior use of traditional knowledge. To ensure that traditional knowledge may be made available to the public, the amendment would further recognize a quasi-right of the traditional knowledge holders which permits the community to grant to consent to access and use in return for shared benefits arrangements.
Vincent M. Smoczynski,
"Willful Patent Filing": A Criminal Procedure Protecting Traditional Knowledge,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol85/iss3/10