By KASS International
Traditional knowledge is one of humanity’s oldest assets. Passed down through generations by indigenous and local communities across the world, it encompasses centuries of accumulated wisdom about medicinal plants, agricultural practices, food preparation, and natural resource management. It is, in many respects, the original research and development. Yet for all its depth and value, traditional knowledge remains one of the least protected forms of intellectual property in the world, and one of the most frequently exploited.
Key Takeaways
- Traditional knowledge represents centuries of accumulated wisdom with significant commercial value, yet it remains one of the least protected and most frequently exploited forms of intellectual property in the world.
- Current global patent law rewards the person who isolates and patents a compound, not the community that identified the plant and preserved the knowledge for generations, creating a fundamental gap in fairness.
- Defensive protection through the documentation of traditional knowledge as prior art is the first line of defence against biopiracy, preventing third parties from obtaining patents over knowledge that already exists within communities.
- The Nagoya Protocol provides a framework for access and benefit-sharing agreements, but these must be carefully drafted, legally enforceable, and monitored to ensure originating communities receive genuine and lasting benefit.
- Businesses that approach traditional knowledge commercialisation with rigour and respect, securing proper access agreements and building authentic benefit-sharing arrangements, will hold a significant advantage in an increasingly values-conscious global market.
Developing products from traditional knowledge?
What is traditional knowledge, and why does it matter?
Traditional knowledge, or TK as it is commonly referred to in IP circles, covers a broad range of subject matter. It includes knowledge about the healing properties of plants, the nutritional value of indigenous crops, the methods used by communities to process natural substances, and the cultural practices that have governed the sustainable use of biological resources for generations. In the context of biotechnology and commercialisation, it is the medicinal and agricultural dimensions of TK that attract the most commercial interest.
The economic stakes are significant. The global market for traditional medicine was valued at over USD 60 billion in 2023 and continues to grow at pace, driven by rising consumer interest in natural remedies, plant-based therapeutics, and holistic wellness. A substantial proportion of the pharmaceutical products on the market today can trace their origins, at least in part, to traditional knowledge. Aspirin was derived from willow bark, long used in folk medicine. Quinine, the basis for malaria treatment, came from the bark of the cinchona tree, a remedy long known to indigenous communities in South America. The knowledge was ancient. The profits were not shared.
The exploitation problem
The commercialisation of products derived from traditional knowledge raises a fundamental question of fairness. When a multinational corporation patents an active compound derived from a plant that indigenous communities have been using medicinally for centuries, who should benefit? When a cosmetics company builds a product line around an extract that local women have prepared at home for generations, should those communities receive any share of the commercial returns?
The answer, under current global IP frameworks, is often no. Patent law rewards invention, not preservation. It protects the person who isolates a compound and demonstrates its novel application, not the community that identified the plant and kept the knowledge alive. This structural gap has created a system in which the custodians of traditional knowledge frequently receive nothing while others profit handsomely from their heritage.
The problem is compounded by the fact that traditional knowledge is, by its very nature, often publicly accessible. It exists in oral traditions, in community practices, in ethnobotanical literature, and increasingly in digital databases. This accessibility makes it difficult to argue that knowledge is confidential or proprietary in the conventional IP sense, yet it also makes it easy for third parties to access and commercialise without restriction.
Notable cases and cautionary tales
The global record on traditional knowledge exploitation is not encouraging. Beyond the turmeric case discussed in our previous article, there are numerous examples of traditional knowledge being appropriated without consent or compensation. The neem tree, long used in India for its pesticidal and medicinal properties, became the subject of dozens of patents filed by foreign corporations in the 1990s, many of which were subsequently challenged and overturned after years of legal effort. The hoodia cactus, used by the San people of southern Africa to suppress appetite during long hunts, was commercialised by a British company as a weight-loss supplement before a benefit-sharing agreement was eventually negotiated, years after the product had already reached the market.
In Malaysia, local biodiversity and traditional practices of the Orang Asli and other indigenous communities represent a rich body of knowledge that has attracted growing academic and commercial interest. Without robust legal safeguards, there is no guarantee that the communities whose ancestors developed this knowledge will be the ones who benefit from its commercialisation.
The IP toolkit for protecting traditional knowledge
Protecting traditional knowledge through conventional IP mechanisms is not straightforward, but it is not impossible either. A layered approach is generally recommended.
The first layer is defensive protection. This involves ensuring that traditional knowledge is documented and made accessible to patent examiners as prior art, so that patent applications seeking to monopolise knowledge that already exists in a community can be identified and rejected. India’s Traditional Knowledge Digital Library, which catalogues thousands of formulations from ancient Ayurvedic texts, is the most successful example of this model to date. Malaysia could benefit enormously from a similar initiative.
The second layer involves positive protection, where communities or states actively seek IP rights over TK-derived innovations. This may involve filing patents for novel applications of traditional remedies, registering geographical indications for products that are uniquely associated with a particular community or region, or using plant variety protection to safeguard indigenous crop varieties.
The third layer is contractual. Access and benefit-sharing agreements, negotiated under the framework of the Nagoya Protocol, can ensure that any commercial use of traditional knowledge is subject to prior informed consent and that the originating community receives a fair and agreed share of the benefits. These agreements must be carefully drafted, legally enforceable, and monitored over time.
Opportunities for Malaysian businesses and researchers
For businesses and researchers who wish to develop products derived from traditional knowledge legitimately and ethically, the opportunities are considerable. The global demand for natural, culturally rooted, and sustainably sourced products is growing, and Malaysian biodiversity and indigenous knowledge represent a genuine competitive advantage in markets ranging from pharmaceuticals to cosmetics to functional foods.
The key is to approach commercialisation with both rigour and respect. This means engaging with local communities early, securing the necessary access agreements, investing in proper documentation and IP protection, and building benefit-sharing arrangements that are genuine rather than tokenistic. Companies that get this right will find themselves not only on the right side of the law, but on the right side of an increasingly values-conscious global consumer base.
Conclusion
Traditional knowledge is not a relic of the past. It is a living, commercially valuable resource that has already contributed immeasurably to modern medicine, agriculture, and industry. The communities that have preserved it deserve to benefit from its commercialisation, and the legal and commercial frameworks to make this happen, while imperfect, are steadily maturing.
The wisdom of generations should not be free for the taking. With the right IP strategy, it does not have to be.
Looking to develop or protect products derived from traditional knowledge? KASS International advises businesses, researchers, and institutions on the full spectrum of IP strategies relevant to biodiversity and traditional knowledge, from patent filing and geographical indications to access and benefit-sharing agreements. Get in touch with our team at kass@kass.asia for expert guidance.