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TK AND SEARCH DOCUMENTATION: PRESENT AND FUTURE IN EPO AND
Examiners look for “prior art” and if it is absence “novelty” is in existence. What constitutes “newness” therefore depends in the main on what is contained in the database.
Since the emergence of global new issues that impact on the law of patents, contents of databases had to change and documents to be produced by the patent applicants are varied. Member states of the patent system have to take into consideration national, regional, and international trends on what constitute search documentation.
A country that does not recognise issues related to Traditional Knowledge (TK) may continue to grant IP because the examiners are not aware of things that exist outside the database.
However, in constituting these databases, countries may choose to consider TK. If that is not the case many legal challenges may ensue trying to prove that the patents granted are not “new”.
Equally in trying to constitute such databases, countries have to consider legal implications for holders of TK. Law of data protection should be
taken into account, intellectual property issues such as positive and defensive protection should be taken into account. Confidentiality and trade secret principles should be considered seriously.
If it can be proven that the database compiler has breached a legal duty such compiler must be sued for damages. In this regard database compilers should note that the following should take place with the TK holders:
• Prior informed consent should me acquired.
It must be clear to the TK holder at the port of entry the purpose for collating such information. Putting such information in the public domain without ascertaining the needs of TK holders may constitute a breach of trust and this may attract legal liability.
• Benefit sharing arrangements. TK holders
may be labouring under the impression that benefits will accrue to them whenever their “sacred” information is accessed.
• Limited access. It must be ascertained at a
port of entry if there should be limited/restricted access. The riding principle is that not everything in the TK regime should be treated as if they are in the “public domain”. There is a reason why things were “transmitted” orally. This information was shared with “trusted” people.
EPO and African Offices should apply their minds on what should govern their search documentation in relation to TK.
Issues to be considered may include, but not limited to:
• Is the information to be collated already in
• How was the information acquired? Did the
parties enter into confidential arrangements on how the information should be treated?
• Prior informed consent obtained.
• Did the parties ever discuss the need for
Positive and Defensive Protection and their implications?
• Secrecy or confidentiality of information.
Some of the information under this regime has been patented or copyrighted and this led to legal wrangle.
• There is a need to consider the contents of
databases/registers of trading partners before IP is granted. If that was the case, no patents were going to be granted based on
the Neem tree, Basmati Rice and Hoodia Cactus. In the area of geographical indications or trade marks, no trade marks was going to be granted based on Basmati Rice and Rooibos tea.
The emergence of TK debates at international and regional levels had an impact on international treaties in the area of patent law: These treaties are:
• The Patent Cooperation Treaty (PCT).
• International Patent Classification (IPC)
The debates introduced by the Convention on Biological Diversity (CBD) in the law of patents internationally, regionally and nationally will have an impact on the search documentation in patent offices.
In this regard the CBD Secretariat approach UN agencies dealing with IP to consider IP associated with TK for benefit sharing purposes. Debates are taking place at:
• WIPO at the IGC level. The discussion in the
Substantive Patent Law Treaty (SPLT) will have to consider TK issues. Databases will have TK issues and probably search documentation in all offices that subscribe to WIPO treaties will have to change their day to day work accordingly.
• The TRIPS Agreement of the WTO will have
to change when these debates are concluded. It is just a matter of time for changes to be effected that will incorporate TK.
• UNCTAD and FAO are also discussing TK
related issues and the complexion of databases will change in the sphere of agriculture and economy/trade.
• Regional organisations such as ARIPO,
OAPI, AU, Andes Nations and Asia and Pacific Region are also discussing TK and such will have an impact on search and documentation. These organisations should move fast and preferably should conclude their treaties before the international dispensation is concluded. If that happens it would be better to influence the conclusion of the international process. If this is not the case the outcome of the international process will be imposed on them.
• National Governments should also conclude
regional and international organisations conclude theirs.
This is the same as discussed above. Nations do not to wait for regional and international processes to be concluded. Regional and intergovernmental processes should be influenced by national policies. South Africa encourages member states of inter-governmental regional and intergovernmental organisations to prescribe their own search and documentation required in their offices.
• Developing nations seem to lack national
• Developing nations seem to be prepared to
follow regional and international agenda whereas such agendas are not a priority for such organisations. South Africa is curving its way in this regard and would appreciate it if developing countries can follow suit in this regard.
• Lack of knowledge on database protection
and other principles in law is a matter of concern.
• Compilation of data should not only be
restricted to patents, but to other spheres of IP and beyond.
• Individual nations should work closely wit
nations that have priority in this area. Regional organisations such as ARIPO and OAPI should also work closely with similar regions that treat these issues as a matter of urgency.
• Influence the international agenda by
concluding debates before the international processes are closed.
entered bilaterally and are enforceable. A legal jurisprudence may take place and such can influence international debates on search and documentation.
Developing countries should have an agenda in this area instead of just following. These issues were put on the international agenda by developing nations and we cannot afford to be followers.
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