Indigenous IP advances tech – certainty increases investment and develops new tech

[Yuqin, Winter 2011, Transnational Law & Contemporary Problems, “Necessity: Enacting Laws to Protect Indigenous Intellectual Property Rights in the United States”, vol. 19, no.¶ 3, pg. 954-956, Heinonline, accessed 6/29/2024, LR]

B. Modern Patent Law Theories as a Basis for Indigenous IP Law

The modern patent law theories described above can accommodate¶ indigenous IP rights, namely promoting advancement of technology and¶ science. Rewarding indigenous peoples' IP rights could stimulate them to¶ disclose their knowledge of biological resources and promote their willingness¶ to collaborate with interested entities. Developed areas and industries would¶ also benefit from these disclosures.

Such potential benefits are evidenced by the fact that native¶ ethnobiological knowledge provides researchers with "not only the identity of¶ the plant, but also the specific part of the plant that contains the substance, the time of year during which the substance is present in the plant, the¶ method of preparing the substance, and the symptoms the substance will¶ alleviate." 30 For example, balsamroot, also known as the sunflower, belongs to¶ the aster family. It has been "used to treat a variety of skin ailments, including¶ infections," by the Secwepemc people living in British Columbia.8 3¶ 1 Secwepemc¶ elders recommend "digging the roots after flowering, in midsummer, when the¶ medicinal qualities of the root are believed to be highest. Then the roots are¶ boiled in water and left to stand until a layer of pitch collects at the surface.¶ The pitch is applied directly [to the] infected areas."3 2 The usage suggests that¶ balsamroots might "have antimicrobial properties."3 3 Consistent with this¶ implication, a standard laboratory bioassay revealed that balsamroot extract¶ has both antibacterial and antifungal activities.3 4 This example shows that¶ native knowledge can direct scientists to test the right plant, and the right¶ part of the plant, at the right growing stage to discover a new medicine.¶ Consequently, disclosure of such knowledge would reduce research costs and¶ is therefore valuable to modern science.

Laws protecting indigenous property rights would facilitate access to¶ indigenous IP. If states enact laws to protect indigenous IP, the process of¶ obtaining, transferring, and enforcing the rights would be streamlined.¶ Indigenous peoples could, therefore, easily license the use of that IP in¶ accordance with clear laws. Additionally, securing indigenous IP rights would¶ likely attract investment because such rights would generate, similar to¶ modern patent rights, an exclusive market in which capitalists would be more¶ willing to invest. 35These potential benefits would promote the¶ commercialization of indigenous IP and its public access.

In contrast, users without protection of relevant laws often find¶ themselves faced with lawsuits because there is uncertainty about what¶ indigenous IP is, who owns it, and how users can legally access it. 36 The¶ Tropical Botanic Garden and Research Institute ("TBGRI") in India, for¶ example, sold a private company the IP rights to the wild plant species¶ arogyapacha. 3 7 TBGRI shared the profits with the local Kanis tribe, who live in the area where the wild plant species grows.38 However, the Kanis people¶ living in other areas of India objected to this deal, claiming that they also own¶ knowledge of the species. 39

All humans benefit from saving diversified genetic resources. The revenue¶ accrued from IP rights can help indigenous peoples to develop their economies,¶ schools, technology, and especially, to protect biodiversity. Diversified genetic¶ resources provide modern science with raw materials needed to develop new¶ biological products. The insulin administered to diabetics, for example, used to¶ be extracted from pigs. 40 This type of insulin differs from human insulin by¶ only one amino acid. 4 1 However, the one amino acid difference can cause an¶ allergic reaction in some patients. 42 Using modern biological technology,¶ biologists modify the pig insulin to be identical to human insulin and thereby¶ eliminate the allergic problem. 43 This fact illustrates that biologists can¶ combine natural genetic materials and modern biotechnology to find new¶ genes and chemicals to treat illnesses. Other modern problems, such as¶ alternative energy, might also find answers in diversified genetic resources. In¶ the future, petroleum might be replaced with polymers from renewable plants,¶ bacteria, or other unknown organisms.