Using Patents to Protect Traditional Knowledge on the Medicinal Uses of Plants in South Africa

 

Emeka Polycarp Amechi
Postdoctoral Fellow,
Dept of Jurisprudence,
College of Law,
University of South Africa, Pretoria
amechep@unisa.ac.za

 

The movement towards the protection of traditional knowledge particularly on the medicinal uses of plants (TKMUP) in South Africa reflects a global albeit belated interest in the protection of traditional knowledge associated with biological resources. Hence, it was not surprising South Africa like most developing nation, sought in response to instances of the misappropriation of its TKMUP and other TK associated with its biological resources, to provide a measure of protection for such knowledge using the intellectual property (IP) system. This is evident in the adoption of the Policy Framework for the Protection of Indigenous Knowledge through the Intellectual Property System in 2008 which identified patent as one of the major IP tools in the protection of the TK. The Policy Framework represents a paradigmatic shift from South Africa’s earlier sceptical and dialectical approach to, and experience with the IP system in context of TK.  This paper therefore examines the benefits and challenges involved in using the patent system in the protection of TK particularly those relating to the medicinal uses of plants (TKMUP). Such examination became necessary as South Africa’s natural capital of biological diversity, together with its wealth of indigenous TK, has been recognised as an important resource base for promoting economic growth through biological innovations under the recently adopted Bio-economy Strategy. It finds that patents offer a great potential in not only protecting TKMUP from misappropriation, but also in promoting the commercialisation of innovative TKMUP or inventions based on or derived from TKMUP in South Africa. However, this can only be possible if the challenges identified in this paper can be successfully navigated.

 

Biodiversity act, bio-economy strategy, biological resources, patent act, patents, traditional knowledge on medicinal uses of plants.

 


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