Before going further, Visser offers a caution: Poorer countries are net importers of IP, and raising the level of protection they provide on _all_ IP (as the WTO IP agreement requires) would mean a net outflow of hard currency.

Visser identifies two motives for protecting traditional knowledge. People in traditional communities, like people in modern communities, want protection that will help them to benefit from the gainful use of their knowledge. In addition, members of these communities often want to prevent use that is offensive to the cultural or spiritual meaning of the knowledge. Modern communities, too, object to demeaning use of social or religious symbols, but the line between the cultural/spiritual and the commercial/scientific is less clearly and perhaps less often drawn in traditional than in modern communities; hence, the cultural/spiritual motive may have more weight in traditional communities.

# **Patents**

As to gainful use, Visser reports several instances in which industrial country patent offices have refused or revoked patents demonstrated to be based on traditional knowledge from a developing country. Many uses, however, do slip through the screen. He also reports a UN estimate that developing countries lose about US$5 billion a year in royalties from unauthorized use of traditional knowledge.

The screening of patent applications for traditional knowledge might be improved in several ways. One suggestion is a consent requirement for patentability. When it appears that an invention for which a patent is sought is based on the biological or genetic heritage of a traditional community, a copy of the contract affording access to the biological resources of the country of origin must be shown.

Databases of traditional knowledge help to protect them from unauthorized use. WIPO has set up the WIPO Portal of Traditional Knowledge to help users find and use such knowledge. Such databases facilitate demonstration that an alleged invention is not new. Professor Peter Drahos has suggested a further step, that a global collection society be established, perhaps under the World Bank. A collection society would be a repository for communities’ databases and would facilitate contacts between companies and groups over the use of such information.

Visser also reviews the possible use of several other legal devices (such as trade secrets law) that might be used to protect traditional knowledge that has possible commercial application.

Many patent laws allow patent applications to be screened for uses that are culturally offensive. In New Zealand, for example, the Intellectual Property Office has guidelines for patents based on indigenous flora, fauna, and nonorganic materials that direct patent examiners to consider if the application is likely to have cultural or spiritual significance for the Maori. Where such application might be offensive to the Maori, applicants must be advised accordingly and given the opportunity to obtain the consent of the competent Maori authority.

Patents, however, are granted country by country, and the screening or consent requirement imposed in the country in which the traditional knowledge originated (for example, screening in New Zealand against Maori concerns) does not automatically carry over to patent applications in other countries.

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