Sui generis only works when it nullifies patents for TK
Ogwezzy 12 [Michael C. Ogwezzy holds a Bachelor of Laws Degree (LL.B) with Honours from the University of Ibadan in 2001. He attended the Nigeria Law School and passed all the qualifying examinations and was subsequently called to the Nigeria Bar in October, 2004. He also holds a Masters Degree in Law (LL.M) of the University of Nigeria in 2008, Professional Masters in Law and Diplomacy (ML.D) of Delta State University-Nigeria in 2009, Professional Masters of Advanced Studies in International Organisation (MASIO/LL.M) of the University of Zurich, Switzerland, 2011. He completed his Ph.D in Law at the University of Nigeria in December 2013. He was formally employed as a staff of the Faculty of Law, Lead City University, Ibadan-Nigeria, in 2008 and currently, he is employed as a Senior Lecturer at the Department of Jurisprudence and International Law, Faculty of Law, Adekunle Ajasin University in Akungba, Ondo State-Nigeria, from September 2014. He carries out research and teaches in the areas of Public International Law, Cyber Law, Energy Law, Labour Law, Administrative Law, Human Rights Law and Law of Tort. He has attended several conferences and workshops in different fields of Law both locally and internationally. He has published scholarly articles in referred local and international law journals, 2012, “Protection of Indigenous or Traditional Knowledge Under Intellectual Property Laws: An Examination of the Efficacy of Copyright Law, Trade Secret and SUI Generis Rights”, https://intapi.sciendo.com/pdf/10.1515/iclr-2016-0076, accessed 7/5/24]staghi
Another approach, that has been strongly advocated by some academics and many NGOs, would be the development of a sui generis regime of IPRs, that is, a legal regime “of its own kind” which is specifically adapted to the nature and characteristics of traditional knowledge. A model of sui generis national legislation that would give communities property-like rights over their collective knowledge was developed by the Third World Network (Community Intellectual Rights Act) in 1994.105 Although this approach has received considerable attention in the literature, little progress has been made in terms of actually implementing this kind of protection. The establishment of a sui generis regime poses, many complex conceptual and practical issues. Briefly these are:106 definition of the subject matter of protection; requirements for protection; extent of rights to be conferred (rights to exclude, to obtain a remuneration, to avoid misappropriation); title-holders (individuals/communities); modes of acquisition, including registration; duration; enforcement measures.107 Sui generis literally means “of its own kind” and consists of a set of nationally recognized laws and ways of extending plant variety protection (PVP) other than through patents. TRIPs itself does not define what a sui generis system is or should be.108 Potentially, a sui generis system could be defined and implemented differently from one country to another 109 and the system might be defined to create legal rights that recognize any associated traditional knowledge relating to genetic resources and promote access and benefit sharing. The government may choose to extend protections to genetic resources and/or knowledge to a community in the form of patents, trade secrets, copyrights, farmers’ and breeders’ rights, or another creative form not currently established in the intellectual property regime. 110 In addition, a sui generis system may adopt measures of protection specific to traditional knowledge in order to nullify inappropriate patents. For example, the Andean Community’s Decision 486 states: “patents granted on inventions obtained or developed from genetic resources or traditional knowledge, of which any member state is the country of origin, without presentation of a copy of the proper access contract or license from the community shall be nullified”.111