The Biopiracy of Traditional Knowledge in United States Patent Law

The United States intellectual property (“IP”) system is deeply intertwined with our country’s history and constitution. t is foundational in favoring young American inventors. George Washington signed the first patent act in 1790 in hopes of promoting the innovation and progress of science and useful arts. Yet, our patent system was also built around the Western tradition of individualism and competition, which failed to recognize the communal nature and traditional knowledge of tribal communities. This disparity allows the biopiracy of traditional knowledge to be lawful. This comment will explore the harmful toll that United States patent law has taken on traditional knowledge by permitting institutions to engage in the biopiracy of plant and medical knowledge. In Part II, this comment explains the legal problem of patenting traditional knowledge. Part III discusses the current legal framework of the United States patent system. Part IV walks through current retroactive legal remedies available to invalidate patents. Part V demonstrates biopiracy in practice, primarily relying on the example of biopiracy of traditional Hawaiian knowledge and culture. Finally, this comment concludes by offering proactive solutions to the combat the legal problem of biopiracy through preventative legislation and the use of databases. This comment does not suggest that tribes must publish all tribal or traditional knowledge to the public to receive IP protection. The use of tribal sovereignty to pass tribal law concerning IP is also a viable option to combat biopiracy while protecting the secrecy and sovereignty of tribes. However, this comment will only explore how tribes may benefit from the use of the United States IP to protect their traditional knowledge.