A recent article in the New York Times highlights a key issue in misappropriation of traditional knowledge i.e. patenting a pre-existing product or process that is widely known in a developing country or other traditional community. (Jennie Erin Smith “Colombians Ask: Who Would Dare Patent Panela?” January, 26, 2021, https://www.nytimes.com/2021/01/26/science/colombia-panela-patent-gonzalez.html). Due to reliance on limited prior art databases and literature, patent examiners tend to miss the prior art that would invalidate such patents or, even worse, disregard such information as irrelevant. What is more dangerous is where the patent is properly and even legally granted, because the inventive step is so low for differentiating between a traditional process and the described process in the patent, that it is nevertheless granted. But, these are the easy cases where there appears to be clear prior art.
That said, it remains to be seen how the application used/cited this prior art to distinguish itself, if at all. The first thing to note is that it is a method/process not a product patent. This may make it easier to distinguish.
The only cited prior art is the applicants own prior patent No. U.S. Pat. No. 6,245,153, also for a ‘sugar cane processing method”, and 6 prior US patents. No foreign patents or other literature are referenced. The current patent is described as an ‘improvement’ on the applicant’s prior one. The current one does not mention any other similar existing process.
The patent does not mention panela or the process for producing panela, although it does reference the product ‘guarapo’ as a beverage, and notes that it’s earlier process patent was directed at producing a more shelf stable version of that type of beverage.
That type of ‘differentiation’, the creation of a shelf stable version of a traditional product, may be just novel enough and inventive enough to allow a patent like this, but absent a real description of WHAT the prior art would be, we do NOT actually know. The danger is that taking a traditional method, whose basic contours are known and replicated and describing it in detail as an ‘industrial method’ can unduly influence the evaluation of an examiner to see differentiation where there is truly none. In this case, the product is industrially produced in places like Colombia and sold on store shelves and made in variations on the traditional method. Again, absent further information about the relevant prior art there isn’t any way to see whether the claimed patent falls into the scope of existing variations.
For a brief introduction to these issues see: https://www.wipo.int/pressroom/en/briefs/tk_ip.html
Technology, Sustainability & Human Rights 