Traditional Knowledge and Patent Law
Let’s think about two related facets of patent law. One involves the degree of protection that should be given to “traditional knowledge.” For example, suppose that a remote tribe in New Guinea uses an herbal remedy that cures cancer. A drug firm in the U.S. learns about this and gets a patent on the cure. Is that patent valid? Probably yes, because unwritten practices do not count as prior art. Thus, the tribe (or its national government) is not entitled to anything. There are good reasons for this policy. First, there is an important social benefit in making local knowledge more widely available. Second, there would be considerable proof problems created (for the PTO and the courts) if unwritten practices were admissible.
Now consider what happens if a patent owner sues somebody for infringement and the defense is that they’ve been using the invention in question since before the patent came into effect. That “traditional knowledge” defense will fail. Proof problems can explain this in part, but it does seem unfair to say that practitioners of traditional arts can’t get any benefits from a patent and are liable for their continuing use. There is an exception with respect to business method patents, where prior use IS a defense (though one that is rarely invoked successfully). Why shouldn’t that be extended to all patents?