Legal Control, The Behavior Of The Biopiracy Of Traditional Knowledge

As the scientific and economic value of traditional knowledge has been acknowledged, there is more and more bio-piracy around the world. In order to protect traditional knowledge and balance the advantages of developed countries in science and technology and those of developing countries in traditional knowledge, many forums, programs and activities are being carried out. China, a far-flung country with 56 nationalities, is rich in traditional knowledge. Meanwhile, China also faces the threat of bio-piracy of traditional knowledge. Therefore, this paper focuses on the resistance of bio-piracy of traditional knowledge.There are two objects bio-pirate attacks: genetic resources and traditional knowledge, but this paper mainly discusses on bio-piracy of traditional knowledge. As the scholars at home and abroad have not reach agreement on the definitions of traditional knowledge and bio-piracy, the paper discusses in Chapter 1 the definitions of these two special terms, so as to define the subject of this paper: the bio-piracy of traditional knowledge.Chapter 2 focuses on the reasons why traditional knowledge becomes one of the objects of bio-piracy. The current intellectual property law is created based on the protection of modern knowledge, while traditional knowledge is essentially different from modern knowledge. Thus, it is full of difficulty to protect traditional knowledge from bio-piracy by current intellectual property law. Moreover, the underdevelopment and disadvantages in economy, culture and society of traditional communities also prevent them from protecting their legal rights and interest with existing intellectual property law. Taking advantage of these loops, bio-pirates conduct a great deal of piracy of traditional knowledge. The Ayahuasca Patent, the Turmeric Patent and the Neem Tree Patent are three famous bio-piracy cases. There are also some other cases we can learn from, such as the Artemisia judaica patent, the P57 patent, the endod case and the lycopene patent. Therefore, this paper set up Chapter 3 to analyze these cases and sum up the lessons we can learn from. Based on the above analysis and the successful practices in the international society, Chapter 4 makes some suggestions on the legal prevention and cure of bio-piracy of traditional knowledge. These suggestions are divided into four parts: 1. reform the definition of prior art, 2. improve the documenting work on traditional knowledge, 3. improve the protection and management of traditional knowledge, 4. establish the prior informed consent and benefit-sharing system in our country. Detailed suggestions are also put forth in each part, including some creative ideas such as recognizing the traditional knowledge available to the member in traditional community but not to the outside world doesn't fall in common domain, making use of the unwritten laws, endowing relevant institutions with the function of collective protection and management of traditional knowledge, etc. Besides, it also points out some improvement of the existing advice, like treating different traditional knowledge differently when documenting them and concretely prescribing the disclosure extent if the invention applied for intellectual property right has made use of traditional knowledge.