Title

Comparative Analysis of Traditional Knowledge as Prior Art in Patent System of the United States and Thailand

Date of Award

4-2017

Degree Type

Dissertation

Degree Name

Doctor of Law (SJD)

Department

Law

First Advisor

Professor Dr. Art Gemmell

Second Advisor

Professor Dr. Hamed Adib

Third Advisor

Professor Dr. Benedetta Faedi Duramy

Abstract

Genetic resources and associated traditional knowledge has been deemed valuable and triggered attention from both developed countries who look for resources to make profits and less developed countries who have long been using their genetic resources and associated traditional knowledge as a source of food, consumables, and cures or treatments for humans, plants, and animals. There has been an international debate in the international level on to whom legal control and ownership of genetic resources and associated traditional knowledge should belong to; whether they are a heritage from the mother earth that belong to everyone without any territorial limitations or they belong to the community of which they can be found in. The legal form that has been playing a major role in the genetic resources and traditional knowledge issue is the patent system which has provided exclusive rights to patent holders of inventions that are derived from traditional knowledge that belongs to a community from another country. The dissertation, 'How to Solve the Biopiracy Problem in Thailand by Using Traditional Knowledge as Prior Art in the Patent System' explores and determines the causes of the problem of patenting traditional knowledge related invention by tackling the prior art subject matter in the patent law scope. The dissertation hypothesizes that inventions derived from traditional knowledge cannot be patented under any patent laws no matter in an international level or a national level because traditional knowledge has been invented, developed, accumulated, and improved through generations which makes it lack the novelty and non-obviousness quality required in the patent system. However, because the relevant international laws do not provide a hard and fast definition and interpretation of what can be constituted as prior arts but leave it up to each member country, the dissertation thus undertakes deep analyses of the relevant international treaties, the patent laws and other relevant laws of Thailand-the country of traditional knowledge misappropriations is the focus of the dissertation-and the United States which is the receiving country of traditional patent applications and determines if traditional knowledge, despite not being properly documented, can be used as prior arts to oppose a patent application. The dissertation also proposes legal approaches of how to put an end to biopiracies and traditional knowledge misappropriations in Thailand via the use of a legal framework.

Comments

This dissertation is available in the Golden Gate University School of Law Library.

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