Volume 12, Number 4 October 8, 2004

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Patent law ignores traditional societiesí contribution

By Amie Lynn Shirkie

Imagine you were approached by someone for a recipe that had been passed down in your family for generations. Say you gave this person the recipe in exchange for a nominal sum. Now imagine this person took your recipe and made billions of dollars with it. What would you do?

Before you answer, add this to the scenario: Imagine the recipe had been handed down orally, and you had no written documentation to prove it had come from you. Imagine that you are poor, undereducated, and perhaps even struggling for day-to-day survival.


Ask yourself: Who owns traditional knowledge? How could this dilemma be solved fairly?

While the debate about intellectual property rights and ownership of traditional knowledge is considerably more complex than this, Chika Onwuekwe, a recent doctoral graduate from the U of S, has spent the past 2½ years unravelling the issues surrounding this debate.

Onwuekwe, former holder of the prestigious Genome Canada Doctoral Fellowship in Intellectual Property, worked as a lawyer in Nigeria for several years before beginning his PhD program in January 2002. He says his background in law inspired him to examine intellectual property rights.

Onwuekwe questioned “the persistent Western notion that plant genetic resources and associated traditional knowledge are part of a common heritage of mankind, over which indigenous communities who own the resources and knowledge about them cannot exercise proprietary rights.” His doctoral thesis explores the intricate debate between “biotechnology-rich countries and biodiversity-rich countries” as it relates to this “unfounded idea”.

Onwuekwe decided the Interdisciplinary Studies program could provide the diverse background necessary to his study, since he preferred to address his research “in a holistic manner by incorporating more than one discipline.”

Under the supervision of Associate Sociology Prof. Michael Mehta and Associate Law Prof. Martin Phillipson, Onwuekwe was able to bring aspects of sociology, law, commerce, and agricultural economics into his examination.

He was particularly interested in situating canola breeding in the debate about intellectual property rights. Although, according to Onwuekwe, tracing the exact origins of canola is notoriously difficult “due to bio-piracy,” canola breeding companies still face the issue of what benefits to provide to regional owners and source communities.

Two documents were key to Onwuekwe’s study: the Agreement of Trade-Related Aspects of Intellectual Property, which provides patents to companies, and the rulings of the UN Convention of Biological Diversity, which are generally beneficiary to source communities.

He wanted to discover who is on which side, and why. When asked if there were any points of agreement, Onwuekwe asserts he found the two positions to be “deeply divided”.

“Some countries are very sympathetic to the rights of source communities, but lack the international means to reinforce their arguments. Others believe strongly in the rights of biotechnological companies. But neither side wants to negotiate.”

According to Onwuekwe, “The current international regime on intellectual property rights, particularly patents, ignores the past and ongoing valuable contributions of traditional communities in conserving biodiversity and improving plant genetic resources. Unless we change the patent laws, developing countries are unlikely to gain financial benefits from their traditional knowledge. As long as the world continues as it is, biotechnology will continue to make money in this manner.”

Onwuekwe, however, is not oblivious to the other side of this issue, and is quick to point out that biotechnological corporations, though they have shortcomings, should not be demonized. After all, he asserts, “developing countries and indigenous communities often approach corporations for economic aid in exchange for traditional knowledge and access to resources, and often receive tax benefits for doing so.” He adds, “It’s not just about winners and losers in this situation.”

Onwuekwe believes a “win-win situation” is possible if the rights and concerns of the diverse parties involved are fairly addressed. He hopes his research will help policy makers better accommodate the proprietary interests of source communities, and create “a more universally friendly intellectual property rights regime.”

He also hopes his study will provide new insights into the debate about intellectual property rights for both developing countries and biotechnological corporations.

Amie Lynn Shirkie writes graduate student profiles for the College of Graduate Studies & Research.

For more information, contact communications.office@usask.ca

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