Intellectual Property is part and parcel with Eurocentric logistics that displaces indigeneity for the “inventive genius” as a method of self-dispossession.

Contrary to popular myth, the IPRs regimes we have today are not universal verities (Drahos, 1998), but products of European political economy and history. The contemporary dominance enjoyed by modern IPRs regimes across the globe is a product of the aggressive and often violent conquest and colonization of diverse cultures and societies by European states in the past five centuries (Penrose, 1951; Helge, 1956). It is a historical fact that modern IPRs such as copyrights, trademarks, and patents regimes have deep roots in European culture, worldview, and imperial impulses (Lowenstein, 2002). Thus, modern IPRs, often portrayed as universal truths with global genetic makeup are in fact originally local expressions of European thought and philosophy. The diffusion and spread of IPRs regimes from Europe to other parts of the world followed distinct patterns of violence, suppression, and outright dispossession. Therefore, the pre‐eminence of Western‐styled IPRs is a direct manifestation of the forceful imposition of European economic, political, and cultural ideas on colonized parts of the globe. Very few erstwhile colonized states chose and institutionalized modern IPRs on their own volition.

As a colonial construct and implant, Eurocentric IPRs were part of the cultural, economic, and legal instruments for the control and subordination of colonized peoples and economies (Sagoe, 1992; Sklan, 1978). The colonization of the Americas, the Oceania, Australia, Africa, Asia and other parts of the world was premised on two main grounds, namely, a propaganda of European superiority over colonized peoples (Mgbeoji, ibid) and of course, economic exploitation of the colonized (Lindley, 1969). Although the transplantation of Eurocentric IPRs (Abbott et al,1999) to colonized territories has yielded mixed results in post‐colonial states (Mgbeoji, 2007), in the colonial encounter, Eurocentric IPRs successfully crowded out TK in many aspects with baleful consequences (Adewopo, 2002).

With particular reference to patents, the dissonance has been astounding. The patent system is not new to controversy. Tracing its origins to Brunelleschi’s “blackmail,” (Lippert, 1999) of the medieval Italian City‐state of Florence, the patent system has waned and waxed to global fame. As recounted by Bruce William Bugbee, in 1421, Filippo Brunelleschi, the Italian architect and painter, announced his invention of an iron‐clad vessel, the “Badalone” which he claimed could carry marble across the lake Arno for the construction of the now famous cathedral of Florence (Bugbee, 1961).3 Brunelleschi refused to disclose the “Badalone” to the public. In addition, he rejected the idea of putting the vessel at the service of the city unless he was granted a limited right to an exclusive commercial exploitation of the vessel. Florence yielded to his unprecedented demands and on June 19, 1421, the City issued him the first recorded patent in history. To Brunelleschi’s embarrassment, the “Badalone” sank on its inaugural trip and the Florentine patent idea sank with it at least, for a long time.

It would appear that after the Florentine debacle, the concept of patents migrated to Venice where it acquired legislative imprimatur and in addition, substantial refinement. For example, the Venetian patent law of 1474 provided for patent duration of ten years, examination of patent applications for novelty, and punishment for infringement of patent rights (White, 1967). Italian artisans and craftsmen began a process of migration to central and Western Europe (Macleod, 1988). Naturally, they did not leave the concept of patents behind them in Italy; they took the patent concept with them: Netherlands in 1817, Spain in 1820, the Vatican in 1833, Sweden in 1834, Portugal in 1837. Thus, it is fair to say that the modern patent concept owes its original inspiration to the Italian City‐States of medieval times. From central Europe, the patent concept spread with European immigrants to North and South America; and by colonialism and diffusion, to the rest of the world.

Akin to the debates on the definitions of TK, certain inferences may be made from the various definitions of patents. First, in spite of several theories on patents, especially, attempts to couch the arguments for and against patents in the discourse of human rights, there is no such thing as a human right to patents. Of course, an argument can be made on the fairness or otherwise of appropriating the intellectual product of another person. But the fact is that a patent is a discretionary grant of a State on an invention which excludes unauthorized persons, for a specified number of years, from making commercial use of a clearly defined and specified invention.4

Second, the patent system is anchored on a capitalist worldview of the economy. In recognition of these, particularly, the latter, the patent system, especially in Western societies, is ostensibly designed to recompense investors by its offer of a temporary monopolization of the commercial benefits of a clearly defined invention. Third, the system of patents purports to celebrate creativity or authorship as an individual effort. This approach discounts immense societal contributions and the incremental basis of most inventions.

For TK on the other hand, the crux of the matter here is whether the patent system is inherently universal in its philosophy and if so, whether it offers the best economic incentive for protecting and rewarding inventions in the realms of activities that are peculiarly communal and where innovations occur in an incremental nature, for example, in plant genetic resources. Law, as most jurists have restated, is a mirror of societal values. In other words, does the Euro‐ centric patent concept reflect non‐European values? In resolving these difficult questions, certain factors must be taken into consideration. Primarily, the passage of time and contemporary realities have modified the jurisprudence on property ownership, the social nature of the inventive process, notions of legal personality, et cetera, which underpin the patent system. The crucial task thus is to locate the areas of intractable difference.

The patent system may be malleable (Coulter, 1991; David, 1993) in some respects but the question remains whether decolonized states have the political and economic clout to create doctrinal adaptations that best serve their own peculiar needs and aspirations. Unlike powerful industrialized countries that can at will create new international IPRs regimes from the scratch,5 developing countries lack the economic and political machinery needed to create effective but parallel global regimes on TK. Changes to the imperial order would have to be both incremental and radical (Ewans, 2000). At this stage, the patent system has to be understood vis‐à‐vis TK to figure how the adaptations may be made.

III. PART 2: THE EUROCENTRICITY OF THE PATENT SYSTEM

Before examining in relative detail the main doctrinal obstacles to the full‐scale adaptation of the patent system to decolonized peoples’ needs for appropriate IPRs regimes, it is imperative that the social and institutional biases against traditional knowledge in general be addressed. The first socio‐cultural obstacle is the notion that bio‐cultural knowledge is common knowledge possessed by all traditional and indigenous peoples. First, however, a working definition of TK would be in order.6 It must be clarified at the outset that the notion of traditional knowledge as an antiquated and inferior body of knowledge is clearly rejected.

A definition of TK cannot be done (Stenson et al, 1999) outside the context of the provisions of the CBD, Article 27 (3) of the TRIPs Agreement7, and perhaps, other international instruments such as Food and Agriculture (FAO) Undertaking of 1983, and various ILO instruments. These instruments and many others rightly locate TK within the context of traditional and indigenous peoples’ historical quest for cultural, political, and economic self‐determination (Kloppenberg, 1988). The debate on the proper definition of TK is thus inherently complex, recondite and cuts across issues that implicate indigenous peoples’ diverse approaches to the philosophical and ethical dimensions of property and personhood.

Further, in addressing this question, two misconceptions on the “traditionality” of TK deserve attention. First, references to the innovations and knowledge of traditional societies, especially on the issue of biological resources as “traditional” are often misconstrued to imply or mean that such inventions and innovations are static, antiquated, and wrapped in mythology. There is a pervasive but unfounded notion that TK is anti‐intellectual and a relic of a by‐gone era handed down to modern successors via unreliable oral history.

As the Four Directions Council points out, [W]hat is ‘traditional’ about traditional knowledge is not its antiquity but the way it is acquired and used. In other words, the social process of learning and acquiring which is unique to each indigenous group, lies at the heart of its ‘traditionality.’ Much of this knowledge is actually quite new, but it has a social meaning and legal character, entirely unlike the knowledge indigenous people acquire from settlers and industrialized.

The second common misconception about TK is that traditional knowledge of biological resources are mere discoveries of “natural phenomena.”As Gurdial Nijar (1996)points out,

[T]traditional uses, although based on natural products, are not ‘found in nature’; as such. They are products of human knowledge. To transform a plant into a medicine, for example, one has to know the correct species, its location, the proper time of collection (some plants are poisonous in certain seasons), the part to be used, how to prepare it (fresh, dried, cut in small pieces, alcohol, the addition of salt, etc.), the way to prepare it (time and conditions to be left in the solvent). And finally the posology (route of administration and dosage.)

From the foregoing, it may be posited that TK refers to that body of knowledge, practices, innovations of traditional peoples regulating the ways by which knowledge is acquired, practiced, transferred, and shared among a given peoples in their traditional setting. The scientific merits of TK have been astounding (Isaac, 1970). Over the millennia, small‐scale farmers and local peoples have contributed to plant diversity by breeding assorted crop varieties to suit particular local conditions (Friends of the Earth, 1995; Johnson, 1992: 2).8 For instance, Indian farmers have grown over 30,000 different varieties of rice during the past century. The native Andeans have developed hundreds of species of tomatoes, potato, maize and beans. Indeed, scientists reckon that the “the total genetic changes achieved by farmers over the millennia was [is]far greater than that achieved by the last hundred or two years of more systematic science‐based efforts (Shiva, ibid at 259).”

Apart from developing new varieties, the knowledge of biological resources for medicinal and other uses by local farmers and healers are often phenomenal and pragmatic. For example, in Sierra Leone, local farmers can differentiate between 70 different varieties of rice based on several criteria including: length to maturity, ease of husking, proportion of husk to grain size and weight, susceptibility to insect attack, behaviour in different soils and moisture levels, cooking time and qualities (Nijar, 1994:17).

TK is not merely of academic or theoretical importance; it often serves practical ends. For instance, in Rwanda, farmers have cultivated mixtures of beans that perform better in their poor soil conditions. The Aguarana Jivaro community in the Peruvian Amazon has developed 61 distinct cultivars of cassava and in the Philippines 123 rice varieties have been found at just five sites. In both cases, the varieties are designed to suit certain specific requirements and needs. Thus, the abundance of multitudinous varieties and species of plant resources and the knowledge of the uses thereof among traditional societies are not merely dependent upon geographical quirks but partly a result of deliberate and cumulative intellectual efforts spanning thousands of years. In order to achieve these sophisticated results in the improvement of plant varieties or cultivars, it has been observed that those farmers:

[E]mploy taxonomic systems, encourage introgression, use selection, make efforts to see that varieties are adopted, multiply seeds, field test, record data and name varieties [and in fact]... do what many Northern plant breeders do (Friends of the Earth, ibid: 4).

According to a report from the World Resources Institute, [I]ndians dwelling in the Amazon River make use of some 1300 medicinal plants, including antibiotics, abortifacients, contraceptives, anti‐diarrheal agents, fungicides, anesthetics, muscle‐relaxants, and many other most of which has not been investigated by researchers (Panjabi, 1993; Scalise and Nugent, 1995; Merges, 1998).

Seventy‐four per cent of the pharmacologically active trees reported by an indigenous group correlated with laboratory tests whereas in contrast only 8 per cent of random samplings showed any activity. In short, absent “the aid of indigenous groups, it is estimated that for every commercially‐successful drug, at least five thousand species must be tested (Jenks, 1995).” Michael Ballick of the New York Botanical Gardens found that using traditional knowledge increased the efficiency of screening plants for medicinal properties by more than four hundred per cent (Nijar, ibid). It is therefore no coincidence that a decisive number of drugs derived from plant resources have been with the help of local peoples operating outside the dominant Western framework of what constitutes “scientific knowledge (Roht‐Arriaza, 1996).

Modern international law has equally come to terms with the reality of traditional input into the improvement, conservation and diversification of biological resources.9 The preamble of the CBD recognizes the “close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources.”10 Article 10 (c) of the CBD obliges Contracting Parties to “protect and encourage customary use of biological resources in accordance with cultural practices that are compatible with conservation or sustainable use requirements.”11 Similar recognition is embodied in Article 8 (j) of the CBD which obliges Contracting Parties to:

[R]espect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.12

The salient points from analyses above are that the links between rational human impact on and mutual interaction with plant resources is enormous and profound. Further, the notion that biological resources in the gene‐rich countries are necessarily of a “wild” character devoid of human input is often generalized and exaggerated. A considerable portion of the so‐called wild biological resources and ecosystems are in fact products of centuries of human impact on the ecosystem and particularly, plants (Young, 1990; Hochberg, 1996; Kaufman and Mallory, 1993). Of course, the mischaracterization of TK as “raw materials” denies and seeks to delegitimize the enormous intellectual contributions made over the centuries by the so‐called informal breeders, farmers and other traditional peoples.

Yet, the intellectual feats of innovation by traditional and indigenous peoples wrought within the framework of traditional societies cannot be adequately protected by modern patent law and processes. The question is, why? A close examination of the doctrines of the patent system will illuminate this paradox. For the purposes of securing patent protection on biological resources, for example, it is not enough that an innovation has been wrought. The threshold for legal protection under the patent regime is whether the invention has surpassed obvious or prior art in the field of that invention (De Valoir, 1995; Seay, 1998‐9). In attempting to apply patent‐like protections to biological resources, the modified test is to ask: when do such innovations, private or collective, surpass obvious knowledge or prior art? (Caillaux, 1994) And whose prior art is relevant?

It seems clear that the opposition by the “scientific and industrial” community to the scientific worth or merit of traditional bio‐cultural knowledge has nothing to do with the innate inferiority of the latter but a reflection of a socially constructed relegated status for the epistemology and of innovations arising from the so‐called traditional or informal sectors. As the environmental activist Pat Mooney has stridently posited, “the argument that intellectual property is only recognizable when performed in laboratories with white lab coats is fundamentally a racist view of scientific development” (Shiva, 1992). Every bio‐cultural innovation, regardless of the cultural framework from which it springs from deserves to be judged on its own merits and not to be peremptorily categorized as “raw material” or automatically elevated to the status of an invention merely because of the respective cultural setting from it is made or derived.

The enduring Eurocentricity of the patent system manifests itself yet again in the fiction that inventions are invariably the result of individual, spontaneous creativity and genius. A mythological but legally sanctioned concept of reward and recompense upon the idea of individual inventiveness discounts the daily reality that most inventions are the result of incremental insights into what already exists in society. In the extremely perverse manifestation of the Eurocentric myth on inventive genius, the “inventive genius” and thus property in the inventions, belongs not to the actual “inventor”, but to the capital investment made by a multitudinous number of corporate or public stakeholders. This pandering to modern capitalism affords juridical basis for ownership by corporate entities of thousands on inventions. For farmers and native healers in traditional and indigenous societies, the notion that inventorship is a solitary exercise is a juridical and institutional impediment.

The myth of the inventor as a lone ranger leads to the common notion that the patent concept is inter alia, incompatible with the inventive process in traditional and indigenous communities. The communal/collective nature of the development and improvement of bio‐cultural knowledge in traditional social structures and units has been posited as one of the grounds why such units of legal persona may not secure patent protection for their intellectual contributions to biological resources (Gana, 1995). This school of thought points to the individualistic structure of Western societies. The contention is that the patent system is partly predicated on the concept of the inventor as an individual and the inventive process itself, as an exercise in solitude (Petersen, 1992; Hannig, 1996). In addition to the obvious generalization inherent in this categorization of the inventive process in non‐Western societies, there are problems of misapprehension of the modern social structure of the inventive process in Western societies.