Reto M. Hilty, Pedro Henrique D. Batista, and Suelen Carls: “Traditional knowledge, databases and prior art: Options for an effective defensive use of TK against undue patent granting”

Reto M. Hilty, Pedro Henrique D. Batista, and Suelen Carls, ‘Traditional knowledge, databases and prior art: Options for an effective defensive use of TK against undue patent granting’ in Stamatoudi I., (ed), Research Handbook on Intellectual Property and Cultural Heritage (Edward Elgar, 2022) pp. 132-153

The defensive protection of traditional knowledge (TK) is one of the mechanisms related to IP law envisaged to protect the rights of indigenous and local communities. Through it, information on the prior existence of this knowledge is used to prevent the fulfilment of patentability requirements. This avoids its undue patenting by third parties. The creation of TK databases may facilitate the achievement of this goal. However, to be successful, this mechanism requires TK to be included in the prior art. This chapter aims to establish under which conditions TK can be considered as part of the prior art. It analyses the public accessibility of the knowledge – including in databases – and the option of extending the prior art to TK that is not publicly accessible. As a result, potential gaps in the defensive use of TK are identified and recommendations for the improvement of its effectiveness are made.

Chapter 7: Traditional knowledge, databases and prior art: Options for an effective defensive use of TK against undue patent granting in: Research Handbook on Intellectual Property and Cultural Heritage