Jin is wrong!

With no claim to comprehensiveness, we address here briefly the contributions of some recent commentators to illustrate what we regard as the structural framework for analyzing the problem of protecting intangible indigenous cultural heritage. Yuqin Jin60 argues for U.S. adoption of “indigenous IP laws” respecting biological and genetic knowledge but is unclear exactly what those laws should provide. Jin argues for a registration system for indigenous knowledge and mandatory disclosure of the origins of genetic resources in patent applications.61 While these provisions might prevent the issuance of some patents and invalidate others, they would not in themselves give any affirmative right of control over the knowledge in question or any economic compensation to the indigenous group that is the source of the knowledge. Jin also suggests that “indigenous medicine, fauna, flora, and their associated knowledge” should be eligible for patents, perhaps for a longer term than is provided for inventions generally.62 Jin acknowledges the problems of what peoples qualify as “indigenous” and who speaks for them.63 However, while this contribution does not explicitly advocate a “one size fits all” solution to the question of indigenous IP, it does not explain how the rights it advocates might vary from group to group. Nor does it attempt to address the problem of why indigenous knowledge, and only indigenous knowledge, should get treatment so radically different under IP law than we afford to all other types of old knowledge. Indeed, in a closing argument Jin asserts that if indigenous people could have patented turmeric, the subsequent litigation ultimately denying such a patent to “inventors” outside turmeric’s indigenous discoverers could have been avoided.64 The real lesson, however, is that patents in old knowledge should not be afforded to anybody, indigenous or otherwise.