This essay likely raises more questions than it answers, but I do offer the following, somewhat pragmatist, conclusions: (1) patents should not cover collective knowledge in the first place, because patents, if at all justifiable, should serve only as an incentive to innovate, not a tool to exploit existing methods; (2) to the extent patents and other intellectual property protections granted to outsiders do continue to extend over such knowledge, there are methods for (and suc- cess stories of) groups that have been able to take control of and reap the benefits of their collective knowledge; (3) under the most egregious circumstances, fraud and unfair competition claims may afford adequate protection outside of intellectual property law; and (4) efforts, such as "defensive publication," to preclude patents because of "prior art" should be construed liberally to preempt patent eligibility in specific cases.
Daniel A. Green,
Indigenous Intellect: Problems of Calling Knowledge Property and Assigning It Rights,
Tex. Wesleyan L. Rev.
Available at: https://doi.org/10.37419/TWLR.V15.I2.4