Any knowledge that seeks protection should be protected under the existing Intellectual Property Rights. If they are not capable of being protected by the existing IPR system, there is at the very least a moral obligation for governments to safeguard these entitlements either through a new IPR law or by other legal means. The Indian Patents (Amendment) Act 1970, under Section 3(p) incorporates amongst the Inventions that are not patentable also "an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components."

The term indigenous knowledge included innovations and the volume of knowledge continually developed, acquired, used, practiced, transmitted and sustained by communities through generations supported by their ecology, environment, life styles, attitudes, societies and culture. It states that an Indian patent may be opposed or revoked if the invention was anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in any country.

Section 2 Clause (j) lays down that "invention " means a new product or process involving an inventive step and capable of industrial application."

Thus as long as the patent requirements of usefulness, novelty and inventive step are strictly upheld by patent offices, there should be no reason for traditional communities to feel threatened because if their knowledge was simply copied there would be no invention to patent.

But the reality is that the patent system, as it currently operates, is inappropriate for the protection of indigenous knowledge, innovations and practices of indigenous and local communities.

There are numerous cases where indigenous knowledge has been used by others to develop a product that is then patented, with neither prior informed consent of the indigenous knowledge holders, nor benefit- sharing.

This concern is exacerbated by the fact that some national patent laws, notably those of the United States and Japan, consider that an "invention" is "novel" even if it exists in another country but is not documented. Thus, it is perfectly legal in these countries to simply copy and patent indigenous knowledge that has been in use in other countries for centuries but has not been documented in written form. They do not recognize undocumented indigenous knowledge held abroad as prior art. Therefore, it appears to be possible in those countries to reformulate this knowledge - in the sense of presenting it in a more "scientific" way - and apply for a patent. We also see a disproportionate legal treatment of commercially useful knowledge held by companies and similarly useful knowledge held by indigenous peoples.

Though the Patent Act does lay a provision that deters the patenting of an invention based on indigenous knowledge, a number of operational constraints that inhibit the effectiveness of formal intellectual property rights systems to provide protection have been identified.

It is clear that many indigenous and local communities are not in a position to easily use formal intellectual property instruments. Therefore, in the interests of equity, procedures must be simplified, costs kept down, and financial and capacity-building assistance offered.

The term "prior art" refers to the entire body of knowledge which is available to the public before the filing date or, if priority is claimed.

The practical issue is that when determining the novelty and inventive step of an invention that might include indigenous knowledge related to genetic resources, patent examiners cannot locate relevant indigenous knowledge as prior art.