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Patent Prior Art & Social Justice

Intellectual property law can sometimes be at odds with social justice. Often times "fair use" feels like appropriation. Trademark law can protect brand names made-up of racial slurs. The list goes on. However, one area where intellectual property law can overlap with social justice rights such as the protection of cultural heritage from monopolization is prior art libraries.

To obtain a patent, the idea, system, process, or other invention must be novel and non-obvious. Examiners review prior art, such as previous patent applications and current marketplace evidence, to understand whether an invention is new or expected. However, if an Examiner does not have access or understand a different culture, country, or group's knowledge, they lack the ability to recognize what is new and what is derivative.

watercolor painting of spice turmeric in a bowl

Example: India - Trailblazer but Confidential

Based on research by Indian doctors, in 1994 the University of Mississippi Medical Center filed for a patent for a "Method of promoting healing of a wound by administering turmeric to a patient afflicted with the wound" (US5401504A). The government of India objected to this patent, arguing "that turmeric has been used for thousands of years for healing wounds and rashes and therefore its medicinal use was not a novel invention" (TKDL). The Indian government was successful in proving that turmeric for wound healing is common knowledge and the patent was cancelled in 1998. This case is often cited as one of the first patent oppositions relying on "traditional knowledge" as a basis for lack of novelty.

At the same time, in the EU there was a prominent patent case around neem oil for pest control where the Indian government also objected on the basis the fungicidal effects were common knowledge.

"Even though some argue that the neem and turmeric cases had limited practical consequences for India, they tapped into this existing discontent over decades of colonial exploitation and triggered what ... [some] call ‘a misguided sense of wounded Indian pride’. Along with a range of previous cases of alleged misappropriation of traditional knowledge from India, the neem and turmeric cases came to mobilize a political initiative to address the problem of foreign appropriations of Indian cultural heritage in a more systematic way"

- Martin Fredriksson, India's Traditional Knowledge Digital Library and the Politics of Patent Classifications, National Library of Medicine (2021) internal quotations omitted.

In 2001, the India government launched the Traditional Knowledge Digital Library (TKDL) to to form a digital repository of Indian scientific knowledge, especially Sanskrit records. There was a concern that Examiners were missing prior art due to lack of digitized and translated documents, hurting the cultural heritage of India as well as the free market.

I have discussed the TKDL in a previous pose on intellectual property protection of yoga. While the prior art database sounds good in theory, there is no evidence it has been effective in helping to block over-broad patent applications.

In a 2012 blogpost, an Indian attorney with a LLM from Sandford, Prashant Reddy, critiques the TKDL for being an expensive government project that is not available for use by the average consumer. The lack of access is especially egregious when South Korea's database is easily accessible. The lack of public disclosure also means the evidence is at higher risk of inaccuracy - there is no third-party checking the translations of the uploaded documents.

The TKDL was declared a success story in 2011 by the World Intellectual Property Office in helping to disseminate knowledge often out of reach of Examiners. However, I would like a more recent analysis of the program. Also, I agree with Attorney Reddy; traditional knowledge databases should be publicly available.

watercolor drawing of kimchi in bowl with red background

Example: South Korea - Current best standard?

In 1984 Nestle obtained a USA patent for fermented vegetables (US4490396) that appears to be a kimchi recipe that is common knowledge in South Korea. This patent is infamous within the Korean Intellectual Property Office as an example of US Examiners not understanding common recipes.

The Korean Traditional Knowledge Portal is free and available to the public in Korean and English:

watercolor picture of a plate of pork chop with veggies on a plate next to a patent

The Internet allows Examiners better access to documents showing use around the world, allowing a better analysis on whether an invention is common knowledge or truly new. It's a very different world from 1980s patent examination. However, not everything is online and there is digital documentation loss. It is important for historical documents and oral traditions to be recorded for preservation and to help prevent the monopolization of common knowledge.


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