This paper is aimed at examining some aspects of the debate on whether and how traditional knowledge could formally be considered as prior art during the examination of patent applications. It discusses the role of databases in making traditional knowledge accessible for purposes of prior art searches and makes recommendations on how best to ensure the patent system does not undermine efforts to protect traditional knowledge. The debate on mechanisms to protect traditional knowledge is no doubt a large and extremely complex one and this paper does not intend to be a comprehensive and detailed analysis of the different issues at stake. The intention is to highlight some salient features of the ongoing debate on recognizing traditional knowledge as prior art in the patent system and the issues arising with regard to systemizing traditional knowledge in databases as a defensive measure to protect traditional knowledge.
The paper first looks at definitional issues regarding prior art and the importance of the concept within the patent system. Secondly, the paper examines the relevance of traditional knowledge as prior art in the patent system. Thirdly, the paper reviews the general problems related to traditional knowledge as prior art under the patent system. The paper then examines the definitions of prior art in Japan, the US and under the European Patent Convention, as well as current trends and practices in these systems and under the Patent Cooperation Treaty system. Sixth, the pa per looks at progress in the discussions on traditional knowledge as prior art within WIPO and in the other fora in which the issue is being discussed. Finally, the paper presents some specific recommendations on how to improve operational aspects of prior art searches to cover traditional knowledge.