Patents assimilate cultural knowledge through eurocentrism under the guise of the “public domain”.

Further, just like the modern patent law created the fiction of corporate “creative or inventive” genius to serve social and economic imperatives, non‐Western jurisprudence has legal personalities serving same or similar ends. These artificial legal personas or juridical entities are usually designed for the regulation of diverse functions including land ownership, succession, inheritance, et cetera. Indeed, the category of legal persons is not closed. Yet, domestic laws in several decolonized states have largely maintained colonially inspired categories of legal personalities, thus further enabling the irrelevance of the patent system to local needs and realities.

Another Eurocentric aspect of the patent regime is the conception of what constitutes public domain for the purposes of evaluating novelty. The prevalent notion is that TK is a matter of common knowledge and resides in the public domain. It is argued that this tenet of patent law when uncritically applied to traditional and indigenous settings is flawed on at least, three grounds. First, not all TK is in the public domain. For instance, native healers, in particular, hardly reveal the secrets of their medicinal knowledge and herbal remedies. Secrecy of their knowledge guarantees their power and influence in the local communities. Indeed, the rituals, magic and spirituality which often surrounds the practice of traditional healing is, in addition to their other myriad societal functions, a critical aspect of the “secrecy regimes” (WIPO Report, ibid in footnote) imposed on such bio‐cultural knowledge by herbalists and healers.

Second, assuming, but not conceding that all TK is in the public domain, placement of such knowledge in the public domain by overzealous researchers without the consent of native healers, does not ipso facto, extinguish a right of ownership to intellectual property. This principle is the rationale for the regime of prior informed consent (PIC) in contemporary international law on access to traditional and bio‐cultural knowledge. Ironically, it is often the same information or knowledge construed to be in the “public domain” in the so‐called traditional societies, which affords the basis for some patents on bio‐cultural resources in some other countries, particularly, Japan and the United States. Third, the concept of public domain is an occidental legal principle which should not be foisted on traditional societies without informed consent.

Beyond the problem of what constitutes public domain, another aspect of the problem of novelty is the mistaken assumption by many policy‐makers that there is a universal consensus on the concept of novelty as a criterion in granting patents. A careful analysis of international patent law and practice does not support the notion of absolute global novelty in the determination of what constitutes a patentable invention. As the United Nations Conference on Trade and Development (UNCTAD) recently observed, “there is no agreed international standard of absolute novelty and, within limits, member countries may apply the different approaches recognized in domestic patent laws.”15

In addition to the definitional anarchy on novelty, an international juridical bifurcation arising from the United States and European patent law jurisprudence on novelty and prior art has not yet been bridged. This technical and geographically‐relative approach to construing the concept of novelty and prior art is hardly dissimilar to the medieval and eighteenth‐century patent policies of the fledgling European industrial States; yet it has legislative force by virtue of section 102 of the United States Patent Act.16

Given that innovations in the informal paradigm are largely conducted in traditions where the keeping of formalized data in books is the exception rather than the rule, the seeming triteness of such TK in such societies would not debar such bio‐cultural knowledge from being construed as “novel” in another country like the United States (Oddi, 1989). The paradox is that such bio‐ cultural knowledge would be ineligible for patent protection in the home country. Hence, what is an obvious invention or prior art in India, as the controversy over Neem derivatives and Turmeric patents demonstrate (Jain, 1999), may be construed as a novel art in the United States of America for the purposes of obtaining a patent grant. Yet, in both cases, the TK were unjustly patented in the United States. Consequently, the blurring of the law on novelty permits, or even encourages some biotechnology and pharmaceutical firms to privatize traditional bio‐ cultural knowledge through a cosmetic re‐packaging of those resources and knowledge.

Thus, it is evident that at the doctrinal level, the ideological values and worldview encoded in the IPRs of the colonizing European powers were often alien to indigenous and traditional peoples ethos and economic traditions (Farley, 1997‐98).