fromtheshamanshuttothepatentofficeinsearchof.doc

from the shaman’s hut to the patent office: IN SEARCH OF EFFECTIVE PROTECTION FOR TRADITIONAL KNOWLEDGE Nuno Pires de Carvalho* He who seeks to build a better mousetrap today has a long path to tread before reaching the Patent Office. Justice Clark, U.S. Supreme Court** INTRODUCTION In 1999 I authored an article titled “From the Shaman’s Hut to the Patent Office: How Long and Winding is the Road?.” In that article I submitted that it was possible to build a road from the shaman’s hut to the patent office. For example, several features of patent law that are commonly seen as obstacles for the use of the patent system for the protection of indigenous knowledge are rather the result of misunderstandings and misperceptions and not actual shortcomings of patent law. In addition, the article proposed that, in spite of being possible to cover several elements of indigenous knowledge by resorting to the traditional mechanisms of intellectual property, such as copyright and related rights, patents, trademarks, geographical indications and trade secrets, any attempt in that direction would divest indigenous knowledge from its holistic nature, and therefore would not be entirely adequate. The article submitted that a sui generis regime of protection of the contents of indigenous knowledge databases would provide effective protection of indigenous knowledge and yet would permit their holders to describe and register their knowledge in its entirety, without the need for dismembering it. Moreover, protection granted would be based on a registration system based on commercial novelty, as opposed to technical novelty. Indigenous knowledge holders would be entitled to obtain injunctions in accordance with the specific piece of knowledge infringed: an injunction against the unauthorized reproduction or fixation, if the knowledge was an expression or a performance, or an injunction against the use, if the element of knowledge had a technical content. The present article