Enhancing Inclusivity in the Intellectual Property Ecosystem: Leveraging Nonconventional IP Tools for Women’s Participation in Innovation.

Abstract
The intellectual property (IP) system has traditionally relied on tools such as patents, industrial designs, copyrights, and trademarks, which often fail to recognize the contributions of marginalized groups, particularly women whose innovations frequently take nonconventional forms like traditional knowledge (TK) and trade secrets. This article examines how these alternative IP mechanisms allow for more inclusive legal       framework, focusing on empowering women innovators, especially from indigenous people and local communities.

Drawing on policy-oriented and qualitative approaches, it evaluates the potential of TK protections and trade secrets to strengthen women’s role in global innovation. Case studies, international frameworks, and targeted recommendations inform strategies for equitable IP systems that value and safeguard women’s contributions.

1. Introduction

Traditional knowledge (TK), encompassing the innovations, practices, and know-how of indigenous and local communities in fields such as agriculture, medicine, and environmental management, is a vital resource for cultural identity, biodiversity conservation, and sustainable development. Despite its immense value, TK remains vulnerable to misappropriation and exploitation, particularly in an era of rapid globalization and insufficient legal protections. Women are often at the heart of this knowledge system, serving as primary custodians of herbal medicine, sustainable farming methods, craftsmanship, and cultural expressions. These practices, typically passed down orally or maintained through shared traditions, rarely align with the rigid frameworks of conventional intellectual property (IP) systems which prioritise individually owned, legally constructed, and formally documented innovations.

The global IP system, while central to fostering creativity and economic growth, has historically marginalized such contributions. This exclusion disproportionately affects women in indigenous and local communities, whose innovations are embedded in collective, place-based knowledge systems. Nonconventional IP tools, particularly TK protections and trade secret law offer flexible pathways to bridge this gap. By emphasizing confidentiality and the preservation of commercially valuable know-how, trade secrets can provide a viable framework for safeguarding TK without making it seem like a square peg matched with the round peg patent or copyright models. These tools not only help protect against exploitation but also foster inclusive innovation, ensuring that women’s contributions are recognized and rewarded. Policy frameworks such as the Convention on Biological Diversity (CBD) and the Nagoya Protocol further reinforce this approach by promoting equitable benefit-sharing, community participation, and respect for the rights of TK holders.

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2. Nonconventional IP Tools and Women’s Contributions

Traditional knowledge (TK) in Africa especially Nigeria encompasses centuries-old practices deeply embedded in community life, from the medicinal and culinary uses of Efinrin (Ocimum gratissimum) to the intricate Adire textile-making tradition of Abeokuta and time-tested sustainable farming methods.

Efinrin, a herbaceous plant in the Lamiaceae family and native to Africa, is a staple in many Nigerian households, prized both as a flavourful spice and as a potent medicinal resource. Its essential oil, best extracted in the early morning to preserve volatile compounds—has long been used to treat ailments such as stomach upset, haemorrhoids, upper respiratory infections, diarrhoea, headaches, skin diseases, and conjunctivitis. Women are central to its processing, leading the steam distillation of Efinrin oil, which, when blended with carrier oils like coconut or olive, serves as an effective anti-inflammatory and insect repellent.

Similarly, Adire (also known as Kampala) represents a heritage art form that fuses creativity, tradition, and economic empowerment. Originating particularly from Abeokuta, it has been practiced for generations by women in Yoruba communities such as the Egba. This craft employs intricate resist-dye techniques including tying, stitching, folding, and the application of cassava paste or wax—to produce striking indigo-patterned textiles. The hub of this tradition is Itoku Market in Abeokuta, where over 1,500 women are engaged in the creation, marketing, and sale of Adire fabrics. As with Efinrin oil extraction, Adire production is sustained through intergenerational knowledge transfer, with women artisans safeguarding techniques that are both culturally symbolic and economically vital.

In rural areas, other women continue to uphold agricultural methods shaped by centuries of ecological understanding, reinforcing the role of TK as a living system of innovation.

Nonconventional IP tools such as trade secrets offer a promising avenue for protection. By safeguarding confidential know-how without the need for formal registration, trade secrets enable women-led cooperatives producing herbal products or culturally significant textiles to maintain competitive advantages. Preserving the secrecy of unique dyeing processes in Adire production or specialized herbal extraction methods in Efinrin oil preparation allows these communities to participate in innovation on their own terms, avoiding the costs and complexities of patent and industrial design systems while retaining control over their cultural and intellectual heritage.

3. Policy-Oriented Approaches to Inclusivity

Policy reform is key to integrating nonconventional IP tools into broader national and international frameworks. India’s Traditional Knowledge Digital Library (TKDL) demonstrates how documenting TK in accessible formats can prevent misappropriation and support legal defenses, as seen in the turmeric and neem cases where women’s medicinal knowledge was central.

The CBD, adopted in 1992, calls on nations to respect, preserve, and maintain TK relevant to biodiversity, and to ensure equitable benefit-sharing through prior informed consent (PIC) and mutually agreed terms (MAT). Also, the Nagoya Protocol strengthens these principles, requiring community consent for TK use and mandating equitable sharing of benefits—whether through royalties, technology transfer, or capacity-building. While gender is not explicitly addressed, these frameworks implicitly recognize the need to protect the rights of women, who are often the primary custodians of TK.

National adoption of these principles can include legislation recognizing communal ownership, mechanisms for documenting TK without compromising confidentiality, and benefit-sharing systems that fairly reward women’s contributions.

4. Case Study Insights

IP protection for traditional knowledge (TK) generally takes two forms: positive protection which grants IP rights to communities, enabling them to prevent unauthorized use and actively benefit from their TK. Also, defensive protection, on the other hand, prevents others from securing IP rights over TK, for example, by documenting it to block or invalidate illegitimate patents.

The following qualitative case studies illustrate how nonconventional IP tools can be applied to safeguard intellectual heritage, offering insights into the legal, cultural, and policy dimensions of landmark case study and disputes. These case studies show that strategic legal measures, combined with thorough documentation, can effectively prevent misappropriation, particularly of knowledge preserved and transmitted by women. The following cases, drawn from credible sources, highlight how TK protection intersects with global IP law, biodiversity governance, and women’s innovation.

1. Samoa’s Traditional Knowledge and HIV/AIDS Research

1.1 Background and Legal Context

Prostratin, an anti-HIV compound derived from the mamala tree (Homalanthus nutans), native to Samoa, represents a rare and significant intersection of traditional knowledge and modern pharmaceutical innovation. For centuries, Samoan traditional healers (taulasea) have used the tree’s bark to treat various ailments, including hepatitis. Guided by this knowledge, researchers—most notably from the University of California, Berkeley—identified Prostratin’s unique ability to activate latent HIV reservoirs, enabling antiretroviral drugs to more effectively target and eliminate the virus.

The use of traditional knowledge in such research is governed by international frameworks, particularly the Convention on Biological Diversity (CBD) (1992) and its Nagoya Protocol (2010). These frameworks emphasize the fair and equitable sharing of benefits arising from the use of genetic resources and associated traditional knowledge. As a signatory to the CBD, Samoa has implemented national measures to safeguard biodiversity and cultural heritage, ensuring that traditional communities are recognized and compensated for their contributions. The Prostratin agreement stands as a landmark access and benefit-sharing (ABS) arrangement, aligning with these legal principles and honouring the intellectual heritage of Samoan healers.

1.2 Challenges & Outcome

The central challenge was ensuring that the benefits from Prostratin’s development were shared equitably with the Samoan communities whose knowledge made its discovery possible. Historically, bioprospecting has often led to exploitation, with indigenous communities receiving little recognition or compensation. Crafting an agreement that balanced the interests of researchers, pharmaceutical companies, and Samoan communities required navigating complex issues of intellectual property rights, cultural sensitivity, and economic fairness.

Scientific and logistical hurdles also loomed large. Translating traditional knowledge into a market-ready drug demanded extensive research, costly clinical trials, and stringent regulatory approvals—without any guarantee of commercial success. Moreover, there was a moral imperative to ensure that Prostratin, if successfully developed, would be affordable and accessible to the populations most affected by HIV/AIDS, particularly in low-resource settings.

In 2004, a groundbreaking benefit-sharing agreement was signed between the University of California, Berkeley, the Government of Samoa, and local communities. Key provisions included:

• Revenue-sharing with the village where the mamala tree was sourced and the families of the traditional healers.
• Allocation of funds to further HIV/AIDS research.
• A commitment to make Prostratin available to developing countries at low or no cost.

The partnership also involved the AIDS Research Alliance, which sought to license Prostratin to pharmaceutical companies under affordability-focused terms. This arrangement has been widely recognized as a model for ethical bioprospecting, ensuring profits are reinvested into community development and global health initiatives.

By 2023, Prostratin remained in the research and development stage, with ongoing work to refine its clinical applications. Nonetheless, the benefit-sharing framework has already set a precedent for future collaborations between indigenous knowledge holders and biomedical researchers.

1.3 Legal and Policy Significance

The Prostratin case study stands as a landmark in operationalizing the CBD and Nagoya Protocol, demonstrating that traditional knowledge can be integrated into modern drug discovery while respecting indigenous rights. It highlights the importance of ABS agreements in preventing biopiracy and making indigenous communities active partners in the commercialization of their knowledge and resources.

Samoa’s government played a pivotal role as mediator, ensuring that negotiations prioritized community welfare. This case has influenced global policy debates on intellectual property rights and bioprospecting, prompting other nations to strengthen their ABS frameworks.

The Prostratin agreement also offers a forward-looking model for ethical licensing in pharmaceuticals, prioritizing affordability, equitable benefit-sharing, and reinvestment in research over profit maximization. By addressing both indigenous rights and global health inequities, it provides a blueprint for tackling pressing medical challenges, such as HIV/AIDS, in ways that serve both local and global interest

2. The Turmeric Case

2.1 Background and Legal Context

In 1995, the United States Patent and Trademark Office (USPTO) granted Patent No. 5,401,504 to two researchers at the University of Mississippi Medical Centre for the use of turmeric in wound healing, claiming exclusive rights to sell and distribute it for this purpose. The Council of Scientific and Industrial Research (CSIR) of India challenged the patent in 1996, arguing that turmeric’s medicinal use—especially in Ayurvedic medicine—was centuries old, well known in Indian households, and therefore lacked the novelty, non-obviousness, and inventive step required for patentability under U.S. law (35 U.S.C. §§ 102 and 103).

2.2 CSIR’s Challenge and Outcome

CSIR presented 32 pieces of evidence, including ancient Sanskrit texts and a 1953 Journal of the Indian Medical Association article, to prove that turmeric’s wound-healing properties were long-established public knowledge. Applying the Person Having Ordinary Skill in the Art (PHOSITA) standard, the USPTO found the claimed invention obvious and revoked the patent in 1997.

2.3 Legal and Policy Significance

This landmark victory against bio-piracy exposed the limitations of conventional IP in recognizing collectively held, orally transmitted knowledge. It also spurred the creation of India’s Traditional Knowledge Digital Library (TKDL) in 2001—a multilingual database designed to make TK accessible to patent examiners worldwide, preventing similar cases of misappropriation. Importantly, turmeric’s household uses, often preserved and practiced by women, were central to the case, aligning with the Convention on Biological Diversity (CBD) Article 8(j) and the Nagoya Protocol’s provisions on prior informed consent (PIC) and mutually agreed terms (MAT).

3. The Neem Case

3.1 Background and Legal Context

In the early 1990s, W.R. Grace and the U.S. Department of Agriculture obtained a European Patent Office (EPO) patent for a method of controlling plant fungi using hydrophobic neem seed extracts. Indian activists, including the Research Foundation for Science, Technology and Ecology (RFSTE), IFOAM, and former European Parliament member Magda Aelvoet, opposed the patent in 1995. They argued that neem’s fungicidal and medicinal properties had been recorded in Ayurvedic texts and practiced in Indian agriculture for centuries.

3.2 Opposition and Outcome

The challengers submitted historical and practical evidence showing neem’s long-standing use to treat skin conditions and protect crops. In 2005, after extensive review, the EPO revoked the patent for lack of novelty and inventive step under Articles 54 and 56 of the European Patent Convention.

3.3 Legal and Policy Significance

The Neem case reinforced the principle that TK cannot be monopolized when it lacks novelty. It also underscored the difficulties of protecting orally transmitted and communally owned knowledge under conventional IP systems. Like the turmeric dispute, the case helped solidify the role of the TKDL, particularly in documenting women’s knowledge of neem’s medicinal applications. It also resonated with the CBD’s Article 15 and the Nagoya Protocol’s access benefit-sharing requirements, bringing ethical concerns about bio-piracy into sharper global focus.

4. The Basmati Rice Case

4.1 Background and Legal Context

In 1997, the USPTO granted Patent No. 5,663,484 to RiceTec Inc. for a hybrid strain of Basmati rice with characteristics similar to traditional varieties cultivated in India and Pakistan. Some claims extended to the rice’s genetic properties and branding as “Basmati.” India, led by the CSIR and other stakeholders, opposed the patent, arguing that Basmati had been grown in the region for centuries and that its unique qualities were part of shared agricultural heritage.

4.2 Opposition and Outcome

Evidence of Basmati’s traditional cultivation and prior art led the USPTO, in 2000, to revoke 17 of the 20 claims, allowing only those related to distinct hybrid strains. The trademark claim to the name “Basmati” also failed, though U.S. law permitted RiceTec to market rice under that name.

4.3 Legal and Policy Significance

This case highlighted the value of Geographical Indications (GIs) as an alternative IP tool. In response, India enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999, and successfully registered Basmati as a GI, recognizing its link to specific regions in India and Pakistan. The case also emphasized the economic importance of Basmati to traditional farmers, particularly women, who have cultivated it for generations. It aligned with CBD and Nagoya Protocol principles on equitable benefit-sharing and underscored the role of legal awareness and capacity-building in empowering communities to protect TK.

5. Overall Implications

Across these cases, a clear pattern emerges: TK, often safeguarded by women in local communities, remains vulnerable under conventional IP regimes. Victories in the turmeric, neem, and Basmati disputes were made possible through documented prior art, strategic legal action, and international advocacy. They also demonstrate the potential of nonconventional IP tools such as TK databases, GIs, and trade secrets to bridge the gap between formal IP law and community-based knowledge systems. These precedents continue to influence global policy debates, pushing for legal mechanisms that respect cultural heritage while ensuring equitable benefit-sharing for source communities.

6. Challenges and Barriers

Despite their potential, TK protections and trade secrets face obstacles in advancing women’s participation. Limited access to legal resources, education, and technical expertise disproportionately affects women in indigenous and marginalized groups. The oral and collective nature of TK often clashes with formal IP systems that prioritize individual, government and artificial personality ownership and written records.

Also, socioeconomic challenges, including poverty and gender bias, further constrain women’s ability to claim their rights.

Additionally, bio-piracy remains a persistent threat, with external actors exploiting TK without consent or fair compensation. Overcoming these barriers requires targeted support, from simplified IP processes to legal aid and community-driven documentation initiatives.

7. Policy Recommendations

Drawing on lessons from the Prostratin case, Turmeric, Neem, and Basmati disputes and in line with the Convention on Biological Diversity (CBD) and the Nagoya Protocol, the following measures can help create a more inclusive, gender-responsive IP ecosystem that safeguards women’s innovations and ensures equitable benefit-sharing:

7.1 Strengthen National TK Repositories

• Establish or expand repositories modelled after India’s Traditional Knowledge Digital Library (TKDL) to document TK in accessible, multilingual formats.
• Ensure these repositories record women’s contributions to prevent bio-piracy and facilitate legitimate use in research and innovation.

7.2 Implement and Enforce Geographical Indications (GIs)

• Introduce robust GI legislation to protect traditional products linked to specific regions, as demonstrated in the Basmati case.
• Recognize GIs as both economic and cultural assets for women-led enterprises and farming communities.

7.3 Mandate Prior Informed Consent (PIC) and Mutually Agreed Terms (MAT)

• Embed PIC and MAT requirements in national laws for all TK use, ensuring communities especially women custodians, receive fair benefits from commercialization.

7.4 Capacity-Building and Legal Support

• Provide training for indigenous and local women in navigating IP tools such as trade secrets, collective trademarks, and GIs.
• Offer legal aid to help communities assert their rights and participate effectively in innovation ecosystems.

7.5 Foster International Cooperation

• Develop agreements with major patent offices (e.g., USPTO, EPO, IPO Nigeria) to integrate TK databases into examination procedures.
• Promote cross-border enforcement to prevent the granting of patents on non-novel TK.

7.6 Bringing It Home.

Drawing from the Efinrin case study in Nigeria, the Natural Medicine Development Agency (NNMDA) has advanced traditional knowledge (TK) documentation through initiatives such as the Digital Virtual Library of Medicinal, Aromatic, and Pesticidal Plants (MAPPs). However, without robust legal safeguards, these resources remain vulnerable to biopiracy and inequitable benefit-sharing. Strengthening protection through trade secret law and cooperative agreements between communities, researchers, and industry would address this gap in similar cases of Adire production. Such agreements should ensure confidentiality, equitable profit-sharing, and cultural sensitivity, enabling TK holders to retain control over sensitive knowledge while promoting fair, ethical, and sustainable collaboration.

8. Conclusion

Nonconventional IP tools, particularly TK protections and trade secrets, have the potential to transform women’s participation in global innovation. By valuing women’s contributions, especially in indigenous and local contexts—these mechanisms can address systemic inequities and preserve cultural heritage. Integrating policy reforms inspired by the CBD and Nagoya Protocol with targeted capacity-building and gender-responsive legal frameworks can create an IP ecosystem that not only protects innovation but also empowers women as key drivers of creativity, diversity, and sustainable development.

References

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13. Basmati Rice Case: Agricultural and Processed Food Exports Development Authority v Rice Tec Inc, 1997 USA

Written by Adeola Osifeko LLB, LLM, ACIS, ABR. She can be reached via email on adeola@aeolawpractice.com and on her mobile 07074453571