The patent system is malleable and subject to change---it can be used as a tool for indigenous communities to protect their knowledge

Given the internal contradictions 43 and interstices of the patent law system, there is ample room for creative "fencing off" of unwanted appropriation and commodification of life forms. This is especially true now that the patent system has so significantly altered its basic concepts that its essential postulates, and the cultural milieu that gave birth to it, may no longer be invoked in preventing indigenous peoples from applying it, at least defensively. For example, the paradigm of the patent system as a normative relationship between the individual inventor and the state, as demonstrated in the classical "Signor Brunnelleschi v. Florence" confrontation, is now an anachronism. Similarly, the routine granting of patents on descriptions of genomes and "natural" products has blurred the distinctions between inventive step and improvement, discoveries and inventions.44 Ironically, arguments ostensibly based on the non-violability of the criteria for patentability have been vigorously employed to dissuade traditional communities and local providers of TKUP from obtaining patents on TKUP. However, the concept of Community Intellectual Rights45 has found legislative support in Brazil and a few other countries.46 Accordingly, indigenous peoples, with the active cooperation of their respective states, may create regimes of communal patents in which inventions related to TKUP may be protected with patents or modifications thereof granted to collectives or other identifiable groups of local innovators and inventors.47

B. Patents and the Concept of Patentability

Although the patent system is intrinsically international, it is peculiarly nationalistic;48 often, aggressively so. The phenomenon of aggressive patent nationalism has been so pervasive that it is occasionally difficult, if not impossible, to define concretely the conditions for granting patents.49 In other words, there are no absolute or uniform standards or criteria worldwide for the patentability of inventions. Even though textbooks and learned disquisitions on the criteria for patentability generally point out such standards as (a) novelty, (b) inventive step, (c) industrial applicability, et cetera as conditions precedent to the grant of patents, the reality is that there is little consensus across national systems on the appropriate content of a patent regime.

Neither the Agreement on Trade Related Apects of Intellectual Property Rights (TRIPS), nor any other relevant international legal instrument, nor an international adjudicative panel or court has articulated a binding, authoritative or definitive interpretation of the key elements of a global patent system. The most recent international instrument that deals with patents, the WTO/TRIPS Agreement, is often seen as "a flexible document open to many interpretations." 50 In short, on a strict analysis, there is no "international law" on, or system of, patents. None of the key elements of patentability, especially the concepts of "novelty" and "invention," has any globally accepted definition.

In addition, a close scrutiny of the prescribed conditions for patentability shows that the interpretation of these concepts by various courts at the domestic level has been largely subjective. As John Golden and other scholars have noted, the expansion of the patent system has been largely a function of judicial activism. 5 1 The result is that judges of varying judicial temperament and philosophies have played key roles in the changes to patent regimes. As a notable British commentator observed, "readers of the Reports of Patent cases might well reach the conclusion that the state of the law in this field depends on how key words and concepts at any crucial moment strike the judge hearing a cause or fit the line of reasoning." 2 The inference, then, is that indigenous peoples and affected states may profit from this interpretative gap and protect their "informal knowledge" from misappropriation by promoting interpretations suitable to their aspirations. In this regard, a close scrutiny of the judicial explication of some of the key concepts of the patent system may be instructive.