Protecting Soft Adaptation Technologies Under Intellectual Property Rights Systems

DATE DOWNLOADED: Mon Jun 14 15:26:19 2021 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 21st ed. Mahatab Uddin & Saleemul Huq, Protecting Soft Adaptation Technologies under Intellectual Property Rights Systems, 25 INTELL. PROP. & TECH. L. J. 19 (2020). ALWD 6th ed. Uddin, M.; Huq, S. ., Protecting soft adaptation technologies under intellectual property rights systems, 25(1) Intell. Prop. & Tech. L. J. 19 (2020). APA 7th ed. Uddin, M., & Huq, S. (2020). Protecting soft adaptation technologies under intellectual property rights systems. Intellectual Property and Technology Law Journal, 25(1), 19-36. Chicago 17th ed. Mahatab Uddin; Saleemul Huq, "Protecting Soft Adaptation Technologies under Intellectual Property Rights Systems," Intellectual Property and Technology Law Journal 25, no. 1 (Fall 2020): 19-36 McGill Guide 9th ed. Mahatab Uddin & Saleemul Huq, "Protecting Soft Adaptation Technologies under Intellectual Property Rights Systems" (2020) 25:1 Intell Prop & Tech L J 19. AGLC 4th ed. Mahatab Uddin and Saleemul Huq, 'Protecting Soft Adaptation Technologies under Intellectual Property Rights Systems' (2020) 25(1) Intellectual Property and Technology Law Journal 19. MLA 8th ed. Uddin, Mahatab, and Saleemul Huq. "Protecting Soft Adaptation Technologies under Intellectual Property Rights Systems." Intellectual Property and Technology Law Journal, vol. 25, no. 1, Fall 2020, p. 19-36. HeinOnline. OSCOLA 4th ed. Mahatab Uddin and Saleemul Huq, 'Protecting Soft Adaptation Technologies under Intellectual Property Rights Systems' (2020) 25 Intell Prop & Tech L J 19 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information Protecting Soft Adaptation Technologies Under Intellectual Property Rights Systems MAHATAB UDDIN* & SALEEMUL HUQ** INTRODUCTION Climate change is the harshest global truth of this century, and countries consider technology an essential tool to combat climate change.' Since all countries do not possess a similar capability to innovate, purchase, or apply technologies essential for their own localities, many countries agreed that the industrialized, developed countries of the world would take the lead and transfer technologies to the developing or least developed countries.2 In this manner, as like adaptation, 3 mitigation, 4 financial cooperation, and capacity building, technology transfer has become a core issue of the international legal and policy regime on climate change. 5 Therefore, like the United Nations Framework Convention on Climate Change ("UNFCCC") and subsequent legal instruments adopted under the UNFCCC, 6 the Paris Agreement also accepts technology transfer as one of the main tools of combating climate change. 7 The technology transfer pillar is essentially aimed to collaborate with other important pillars, especially with the adaptation and mitigation pillars, of the UNFCCC.8 This is be- * Mahatab Uddin is an Advocate of the Bangladesh Supreme Court and a Visiting Researcher at the International Centre for Climate Change and Development ("ICCAD") at Independent University, Aftabuddin Road, Block B, Bashundhara R/A, Dhaka, Bangladesh. He is a Ph.D. in Public International Law on Climate Change and Sustainable Development (Aarhus, Denmark), an M.Sc. in Sustainable Development (Uppsala, Sweden), and an LL. M. in European Intellectual Property Law (Stockholm, Sweden). ** Saleemul Huq is a Senior Fellow at the International Institute for Environment and Development ("IIED"), Gray's Inn Road, London, U.K. He is also a director at ICCAD at Independent University, Aftabuddii Road, Block B, Bashundhara R/A, Dhaka, Bangladesh. 1. Cf United Nations Framework Convention on Climate Change (UNFCCC) art. 4(3), 4(7)(9), May 9, 1992, 1771 U.N.T.S. 107 (emphasizing the importance of technology for energy efficiency and greenhouse gas emission control, among other such goals, not directly stating climate change); Conference of the Parties' Twenty-first Session, U.N. Framework Convention on Climate Change, Paris Agreement, art. 6 (8), U.N. Doc. FCCC/CP/2015/L.9/Rev.l. 2. Paris Agreement, supra note 1, art.13(9); UNFCCC, supra note 1, art. 4(3), 4(7), 4(9). 3. Adaptation refers to coping with changed climatic scenarios through taking proper steps to diminish the negative impact and exploit the positive impact of climate change. See CLIMATE CHANGE SECRETARIAT (UNFCCC), TECIINOLOGIES FOR ADAPTATION TO CLIMATE CHANGE 7 (2006). 4. Mitigation in terms of battling against climate change refers to finding ways of decreasing greenhouse gas ("ghg") emissions in the atmosphere or finding ways of storing or absorbing greenhouse gases. CLIMATE CHANGE SECRETARIAT (UNFCCC), supra note 3, at 7. 5. Paris Agreement, supra note 6. UNFCCC, supra note 1, art. 7. Paris Agreement, supra note 8. Id. art. 6(8). 1, art. 6(8), 10(2), 11(1). 4(3), 4{7)-4(9), 11(1). 1, art. 6(8), 10(1), 10(2), 10(6). 19 LNTELL. PROP. & TECH. L. _. 20 [Vol. 25:1 cause both adaptation and mitigation activities are vastly dependent on innovation and transfer of the appropriate technologies. Until now, the global legal regime on climate change has put more importance on mitigation than on adaptation.9 Presumably, the main reason for this was that mitigation has private economic incentives through 0 "green economy" industries while adaptation has fewer such incentives. Besides this, another possible reason concerns the clarity of the nature of possible measures for adaptation. Since the measures essential for mitigation are very clear in nature, governments can easily adopt necessary posi- tive steps for reducing greenhouse gas emissions or storing greenhouse gasses ("ghgs")." On the contrary, it is not easy for governments to determine which steps fit climatic impacts in different regions. Likely due to this difficulty, governments preferred to let adaptation happen by way of automatic adjustments "through the 'invisible hands' of natural selection and market forces."' 2 As a consequence, in comparison with global mitigation activities, global adaptation activities are seen as a complete market failure.' 3 This market failure was not merely caused by the fact that governments were less willing to pay attention to adaptation, but also by the reality that private sectors were not as interested in investing in the adaptation sector as they were in the mitigation sector.' 4 Hence, innovation and trans5 fer of new technologies occurred much slower in the adaptation sector.' This paper considers this one possible reason for why the "invisible hands" of "natural selection and market forces" in the adaptation sector, especially in innovating and transferring adaptation technologies, is failing to create economic value from soft knowledge and hard products deriving from adaptation related research investments.' 6 Creating economic value from adaptation technologies is important for the success of global climate change adaptation activities. Once tradi- tionally used soft knowledge or know-how adaptation technologies have economic value, both public and private sector investors or research entities will invest in identifying or developing these technologies. This paper considers intellectual property protection as an important tool in making soft 7 adaptation technologies financially valuable.' Accordingly, this paper will 9. Cf Paul Steele, Why Adaptation Is the Greatest Market Failure and What This Means for the State, WORLD RES. INST., https://www.wri.oT/our-work/prjcct/world-resources-report/why-adaptation-greatestmarket-failure-and-what-means-state [https://perma.cc/KC84-CDW4I (explaining that there is more economic focus on mitigation than techniques like renewable energy, not directly stating adaptation). 10. Id. 11. 12. 13. Id. Id. Id. 14. Id. 15. Id. 16. Id. Cf World Intell. Prop. Org. [WIPO], Economic Aspects of Intellectual Property in Countrnes with 17. Transition, at 5, https://www.wipo.int/edocs/pubdocs/en/wipopubtransition_8.pdf [https://perma. cc/8AGX-8PR9] (explaining that intellectual property protection can bring financial value to intellectual creations like knowledge or skills without specifically mentioning soft adaptation technologies). ProtectingSoft Adaptation Technologies 2020] 21 examine to what extent the current Intellectual Property Rights ("IPRS") systems are capable of protecting soft adaptation technologies and bringing economic reward for owners or generators of those technologies. In light of this, first, this article will provide a comprehensive understanding of the term "technology." Second, it will give definitions of adaptation technologies along with a brief list of different kinds of "soft" adaptation technologies. Thereafter, it will cover the idea of IPRs followed by a thorough assessment of the role of different kinds of IPRs in protecting soft adaptation technologies. This assessment will be done by examining whether the nature and characteristics of these technologies fulfill the essential conditions for the different IPRs-copyrights, patents, trademarks, geographical indications, trade secrets, and sui generis plant protections. 1. TECHNOLOGY Scholarly definitions of technology can broadly be divided into three perspectives: (1) technology as a transformer perspective, meaning transforming any input into an expected output; (2) technology as a tool or product perspective, meaning technology as a tangible product or property; and (3) technology as knowledge perspective, meaning technology as an intangible product or property.' 8 Among proponents of technology as a transformer, Thomas Hughe thought of technology as "the effort to organize the world for problem solving so that goods and services can be invented, developed, produced, and used."1 9 Among proponents of technology as a tangible tool or product, Michael Fullan defined technology as the laborintensive or machine maneuvers applied over any object in order to come up with any expected tool or product. 20 Edwin Mansfield denoted technology as "society's pool of knowledge regarding the industrial arts." 2 1 Based on these diverse definitions, one can deduce that technology is a "practical manifestation[] of intelligence" 22 that includes all tools, machines, utensils, weapons, instruments, housing, clothing, communication and transportation devices, and the skills by which we produce and use them. 23 It also includes the methods and knowledge that can be employed for bringing about an expected outcome. As such, examples of technology include a wide array of material and immaterial things-wheels, plows, tractors, bows and arrows, legislation, strategies, plans, programs, and even budgeting systems for accounting can 18. RABIUL AMIN, TECHNOLOGY TRANSFER FOR SUSTAINABLE DEVELOPMENT THROUGH CLEAN DEVELOPMENT MECHANISM (CDM): THE BANGLADESH PERSPECTIVES 22 (Dec. 2005) (Ph.D. thesis, Murdoch University). 19. THOMAS P. HUGHES, AMERICAN GENESIS: A CENTURY OF INVENTION AND TECHNOLOGICAL ENTH USASM, 1870-1970, at 6 (Univ. Chi. Press, 2d. ed. 2004). 20. Michael Fullan, Industrial Technology and Worker Integration in the Organization, 35 AM. SOCIO. REV. 1028-39 (1970). 21. EDWIN MANSFIELD, TECHNOLOGICAL CHANGE: AN INTRODUCTION TO A VITAL AREA OF MODERN ECONOMICS 9 (Norton, 1971). 22. FREDERICK FERRE, PHILOSOPHY OF TECINOLOGY 26 (Prentice Hall, 1988). 23. Read Bain, Technology and State Government, 2 AM. SOCio. REV. 860 (1937). INTELL. PROP. & TECH. L. J. 22 (Vol. 25:1 be considered technology. 24 Similarly, a business method or business model can also be considered technology. Accordingly, one can claim that specific methods for cultivating a product in any specific geographical area can also be technology. Thus, traditional knowledge 25 applied by indigenous people, or traditional methods of solving any problem applied by people of any specific community or specific region, should also be considered technology. II. ADAPTATION TECHNOLOGY The operational definition for adaptation technology refers to "the application of technology in order to reduce the vulnerability, or enhance the resilience, of a natural or human system to the impacts of climate change." 26 Unlike mitigation, adaptation technologies are not confined to 27 the energy and industry sectors. Adaptation technologies concern a wider health, and infrastructure. 28 Conse- range, including, water, agriculture, quently, the nature of adaptation technologies is more cross-sectional and involves gathering diverse stakeholders within and across all concerned sectors. 29 Like technologies for all other sectors, adaptation technologies can be divided into three categories: (1) hardware; (2) software; and (3) orgware. While hardware means tangible technologies like flood or drought resistant crops, software, or just soft, represents the capacity and processes involved in employing any technology. 30 Knowledge, know-how, skill, building awareness, providing education, and training are also considered software.31 Some kinds of adaptation practices and methods-for instance, insurance schemes or crop rotation patterns-that are not generally considadaptation software are software. 32 Moreover, technology, ered technologies also include techniques which have been used by many communities as traditional methods of coping with climate variability and im3 proving resilience to socio-economic changes 3-which include building 3 houses on stilts, constructing bunds, and building levees or dykes. " These 24. AMIN, supra note 18, at 23. In the forum of global IP system traditional knowledge ("TK") is "knowledge, know-how, 25. skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity." Traditional Knowledge, WORLD INTELL. PROP. ORG., https://www.wipo.int/tk/en/tk/ [https://perma.cc/Y4'/K-N6Q1-. 26. Subsidiary Body for Scientific & Technological Advice, Rep. on the Seminar on the Dev. and Transfer of Technologies for Adaptation to Climate Change, on its Twenty-Third Session, U.N. Doc. FCCC/SBS'A/2005/8, Xl 7 (2005). 27. United Nations Env't Programme [UNFP|, Technologies for Adaptation: Perspectives and Practical Experiences, at ix (2011). 29. Id. Id. 30. Id. at x. 31. Id. 32. Id. 33. Id. 34. Id. at ix. 28. & 2020] ProtectingSoft Adaptation Technologies 23 technologies are tools for community based adaptation,35 which may also be called "community knowledge." Likewise the traditional practices and knowledge of diverse indigenous communities are also soft adaptation technologies.3 6 Since local communities of different regions of the world began to face climate change induced adversities no more than twenty-five years ago, research concerning community observations and response to climate change induced adversities began no more than fifteen years ago.37 It will take more time for governments and other institutes to identify or list all the necessary adaptation technologies. 38 Hence, within a few decades, many adaptation technologies will arguably be based on traditional knowledge, methods, or processes. Traditional knowledge soft adaptation technology also includes traditional medicines.39 The orgware category of technology is related to "the ownership and institutional arrangements of the community or organization where the technology will be used."40 In many cases hardware may need to be combined with software and orgware. 4 1 Table 1 below provides examples of technology types for different sectors according to the above classifications. 42 35. Community based adaptation is "based on the premise that local communities have the skills, experience, local knowledge and networks to undertake locally appropriate activities that increase resilience and reduce vulnerability to a range of factors including climate change." See David Dodman Diana Mitlin, Challengesfor Community Based Adaptation:Discovering the Potentialfor Transformation, 25 J. INT'L DEV. 640 (2013). For more about community-based adaptation, see generally SALEEMUL HUQ HANNAH REID, INT'L INST. OF ENV'T & DEV. (IED), COMMUNITY-BASED ADAPTATION: A VITAL APPROACH TO THE THREAT CLIMATE CHANGE POSES TO THE POOR (2007); SALEEMUL HUQ HANNAH REID, COMMUNITY-BASED ADAPTATION TO CLIMATE CHANGE: EMERGING LESSONS (Jonathan Ensor ed., 2014). 36. United Nations Framework Convention on Climate Change, Best Practices and Available Tools for the Use of Indigenous and TraditionalKnowledge and Practicesfor Adaptation, and the Application of Gender-Sensitve Approaches and Toolsfor Understandingand Assessing Impacts, Vulnerability and Adaptation to Climate Change, at 45, U.N. Doc. No. FCCC/TP/2013/l 1 (2013). Cf id. at 3 (explaining that local communities started experiencing climate change impacts 37. around twenty years ago and research concerning community observations and responses also began around twenty years ago). Cf id. (explaining that governments and other organizations have limited experience for de38. veloping indigenous and traditional knowledge into climate change processes, without specifically mentioning the identification of adaptation technologies). 39. About Us, WORLD HEALTH ORG., https://www.who.int/traditiona-complementary-integrativemedicine/about/en/ [https://perma.cc/AK64-5WUB] (defining traditional medicine as "the sum total of the knowledge, skills and practices based on the theories, beliefs and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health, as well as in the prevention, diagnosis, improvement or treatment of physical and mental illnesses"). 40. United Nations Env't Programme [UNEP], supra note 27, at x. 41. Id. 42. Id. [(Vol. 25:1 INTELL. PROP. & TECH. L.J. 24 Table 1: Diverse Kinds of Adaptation Technologies Sector/Technology type Agriculture Hardware Software Orgware Crop switching, Farming practic- Flood or es, research on Local institutions such as drought re- new crop varie- agiculture sistant crops ties, more efficient weather boards development forecasting tools Water resources and Ponds, wells, Increase water Water use hydrology reservoirs, rainwater har- use efficiency and recycling, associations, water pric- vesting storing fresh water during mon- ing soons Coastal zones Dykes, seawalls, Development Building tidal barriers, planning in ex- codes, early breakwater posed areas, warning sys- Methods of building dykes, tems, insurance sea walls Health Vector control, Urban planning, Health legis- vaccine, im- health and hy- lation proved water giene education, treatment and traditional medi- sanitation, traditional medici- cal knowledge nal plant varieties Infrastructure Climate proof- Knowledge and Building ing of buildings, know-how codes and roads and bridges standards However, apart from traditional or community knowledge technologies, adaptation technologies can be modern technologies, high technologies, and future technologies.4 3 Modern technologies are those which were invented after the beginning of the industrial revolution in the late eighteenth century." High technologies are those derived from recent scientific progress,45 such as earth observation systems, geographical information sys- 43. 44. 45. Id at 20. Id. Id. ProtectingSoft Adaptation Technologies 2020] 25 tems, genetically modified organisms, and information technologies." Future technologies are those that have not yet been invented.47 III. INTELLECTUAL PROPERTY RIGHTS The term intellectual property ("IP") refers to "creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce." 48 Accordingly, IPRs confer rights to inventors, authors, musicians, or business entrepreneurs. 49 The rationale behind IPRs is to encourage authors, inventors, creators, and entrepreneurs by offering them moral and economic rewards. 50 This rational may be especially useful when employed to increase innovation and dissemination of climate change adaptation technologies because adaptation technologies are different from mitigation technologies in terms of both scale and scope. In terms of scale, they involve less capital and only small interventions, but require close adaptation to local circumstances. 5 1 In terms of scope, they cover a whole host of sectors, from earth observation systems to simple traditional or indigenous techniques of coping with the environment.52 The potential of return on investment in adaptation technologies is highly unpredictable compared to mitigation technologies. While the impact of future mitigation technologies is easily measured in terms of efficiency in reducing ghg emissions, the impact of future adaptation technologies can only be predicted based on the current projections of future climate change. 53 For this reason, if knowledge or know-how generated from climate change adaptation research is promised protection through IPRs, private sector investors would be encouraged to invest more in the innovation of these adaptation technologies. Without these protections, the investors might always be hesitant to invest in this uncertain sector due to the high risk of loss. However, with the many different types of intellectual creations, IPRs come in equal diversity-copyrights, patents, trademarks, industrial design, geographical indications, and trade secrets, among others. 54 The following 46. Id. 47. Id. 48. What Is IntellectualProperty?, WORLD INTELL. PROP. ORG., https://www.wipo.int/about-ip/cn/ [https://perma.cc/APY9-DU2J]. Cf Chandra Nath Saha & Sanjib Bhattacharya, IntellectualProperty Rights: An Overview and Impli49. cations in Pharmaceutical Industry, 2J. ADVANCED PI ARM. TECH. & RSCH. 88 93 (2011) (explaining that IPRs confer legal rights to inventors or creators to protect their invention or creation, not directly stating authors, musicians, or business entrepreneurs). Birgitte Andersen, The Rationalesfor Intellectual Property Rights: The Twenty-First Century Controver50. sies, at 4, 7 (July 2003) (unpublished paper), https://www.researchgate.net/publication/228871485_ The_Rationales_forintellectual_PropertyRightshc.._Twenty-First_CenturyCon troversics. 51. CLIMATE CHANGE SECRETARIAT (UNFCCC), supra note 3 (cited in United Nations Env't Programme [UNEP], supra note 27, at x). 52. United Nations Env't Programme [UNEP], supra note 27, at x. 53. Id. 54. See What Is Intellectual Property?, supra note 48. INTELL. PROP. & TECH. L. J. 26 [Vol. 25:1 section of this article will examine the possibilities of these diverse IPRs protections for the many kinds of software adaptation technologies. IV. PROTECTION OF 'SOFT' ADAPTATION TECHNOLOGIES UNDER DIVERSE IPRS A. PATENT A patent is "an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing some55 The Agreement thing, or offers a new technical solution to a problem." 56 on Trade Related Aspects on Intellectual Property Rights ("TRIPS") specifies three essential conditions for receiving a patent for any claimed in57 novation: (1) novelty; (2) non-obviousness; and (3) industrial applicability. The term "non-obviousness" is alternatively known as an "inventive step" while the term "industrial applicability" is the same as "useful" to some ("WTO") member states.58 Hence, in connec- World Trade Organization tion with patentability of all soft adaptation technologies, it is essential to examine whether the technologies in question can fulfill these three essential criteria. 1. Novelty The novelty requirement of a patent application refers to the fact that "an invention must never have been made public in any way, anywhere, 59 In other before the date on which the application for a patent is filed." 60 This words the invention "must be the first of its kind in the world." the of "state the of as part is found or process a product if that means the when time art"-found within use or commonly understood-at the patent application was filed for the first time, the patent cannot be granted. 6 ' However, determining whether community or traditional knowledge soft adaptation technologies fulfill the novelty requirement is not always this easy. This is because traditional knowledge is usually orally transmitted from older generations to new generations and thus, is actually only known 62 within that particular community. As such, traditional knowledge adapta- What Is a Patent?, WORLD INTELL. PROP. ORG., https://www.wipo.int/patents/en/ 55. [https://perma.cc/BT6F-EZRU]. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 1869 56. U.N.T.S. 299, 33 I.L.M. 1197 [hereinafter TRIPS Agreement]. Id. art. 27(1). See id. ("For the purposes of this Article, the terms 'inventive step' and 'capable of industrial 58. application' may be deemed by a Member to be synonymous with the terms 'non-obvious' and 'useful' respectively."). 59. Novelty Law and Legal Definition, USLEGAL, https://lefinitions.uslegal.com/n/novelty/ [https://perma.cc/L.NF3-KLD3]. Canadian Intell. Prop. Off, A Guide to Patents, Gov. CAN. (Feb. 24. 2020), https://www.ic. 60. gc.ca/cic/site/cipointernet-internetopic.nsf/eng/h_wr03652.html [https://perma.cc/37EU-4JG9]. 57. It is not so easy to apply this principle because the standard of being considered state of the 61. art is not constant, and it differs from jurisdiction to jurisdiction. For instance, oral-based knowledge systems are predominant among First Nations of Canada. 62. Among First Nations of Canada, "Isitories are frequently told as evening lamily entertainment to pass 2020] Protecting Soft Adaptation Technologies 27 tion technologies are usually not new at the time of filing a patent application. But, technically, a patent application for traditional knowledge adaptation technology may not lose "novelty" if it is examined only on the basis of the available prior art because, while the formal process of identifying prior art differs from country to country, most jurisdictions largely consider only information disclosed in writing, documented through publication, or publicly accessible on databases as prior art.63 Since traditional knowledge and community knowledge are mainly transmitted orally, and many of those have not yet been documented in any form, technically, the undocumented traditional climate adaptation technologies are not prior art in many national patent schemes. Of course, having no documentation of these traditional or community knowledge adaptation technologies also brings apprehension about losing the economic benefits for the owners. This will happen if any traditional or community knowledge is stolen by a third-party inventor who develops climate change adaptation modern technologies or high technologies by modifying this stolen knowledge and thereafter receiving patent protection. Taking these issues into account, it is also essential to determine whether these knowledge owners need economic benefits through gaining patent protection or by preventing others from gaining patent protection over their knowledge. In the first case, the knowledge will receive positive 64 protection, and in the second case, it will receive defensive protection. In the case of a failure to receive positive protection 65 for any specific traditional or community knowledge soft adaption technology, concerned owners can document the knowledge so that it will be considered prior art and prevent any third party from receiving patent protection for any simple modification. Obtaining defensive protection is especially possible in cases of traditional medicine related adaptation technologies because traditional knowledge that can heal, prevent, or cure climate change induced diseases can easily be documented so as to qualify as prior art. Then concerned communities can prevent third parties from receiving patent protection for drugs or vaccines based on their traditional medicine know-how or knowledge, which gives communities the opportunity to gain financial profit by making an "access and benefit sharing agreement" with the drug or local or amily knowledge." See Erin Hanson, Oral Traditions, INDIGENOUS FOUNDS., https://indigenousfoundations.arts.ubc.ca/oraltraditions/ [https://perma.cc/7ZA8-9CP5; see also Margaret M. Bruchac, Indigenous Knowledge and Traditional Knowledge, in ENCYCLOPEDIA OF GLOBAL ARCHAEOLOGY 3814- 24 (Claire Smith ed., 2014). along 63. World Intell. Prop. Org. [WIPO], Recognition of Traditional Knowledge Within the Patent System: Interimn Draft, Ninth Session, annex r 39, WIPO/GRTKF/IC/9/8 (Mar. 15, 2006), https://www. wipo.int/edocs/mdocs/tk/en/wipogrtkf ic_9/wipo_grtkf ic_9_8.pdf [https://perma. cc/XQ29-XVZ8]. 64. Traditional Knowledge, supra note 25 (explaining that defensive protection of TK refers to any process that can be used to protect any party other than the original owner of the TK from the acquisition of IPRs over the TK or genetic resources measures to use or to obtain IPRs over TK). 65. "Positive protection is the granting of rights that empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation." See Traditional Knowledge and IntellectualProperty -Background Brief, WORLD INTELL. PROP. ORG., https://www.wipo.int/ pressroom/en/briefs/tkip.html#:~:text=Positive%20protection %20is%20the%20granting,benefit% 20from%20its%20commercial%20exploitation [https://perma.cc/38LZ-VUSJ]. INTELL. PROP. & TECH. L.J. 28 V 25:1 [Vol. vaccine manufacturer. 66 This way, even if positive protections cannot be gained, at least the community has some bargaining power. 2. Non-obviousness The second requirement of patentability-inventive step or nonobviousness-must be determined by comparing the knowledge with the prior art. An invention is considered inventive if, "having regard to the state of the art, it is not obvious to a person skilled in the art." t7 This means any claimed innovation needs to be an improved or developed version of any existing technology, which would not have been obvious or clearly understandable to someone working in the relevant field of technology.6 8 Hence, to fulfill this requirement, the inventor of a new knowledge or scientific process for climate change adaptation must prove that the invention is not just an ordinary improved version of existing, similar technology. For instance, a patent application for a new method of building dams or seawalls with AI based robots will contain an inventive step if, in comparison with similar existing methods of using robots, the improvement of the method is not easily inferable or predictable by a person with skill in the art of Al technology. While fulfilling the inventive step requirement is not a difficult issue for any modern technology or high technology scientific knowledge, software, process, method, or know-how, it does not seem so easy for traditional or community knowledge climate adaptation tools. This is mainly because the scientific or commercial application of the community or traditional knowledge adaptation tools contains a risk that the knowledge may not be non-obvious to an expert working in the area. 3. Industrial Applicability To meet the third requirement of patentability-industrial applicability or utility-an invention should have use in some kind of industry or in agriculture.69 In this regard, for modern or high soft adaptation technologies, continuing the above example of a new method of using Al based robots to build dams or sea-walls, industrial application is fulfilled through 66. The concept of "access and benefit sharing agreement" is generated From the Convention on Biological Diversity ("CBD") objectives, of which include a fair and equitable sharing of benefits that arise from "commercial and other utilization of genetic resources." See United Nations Environment Programme [UNEP], Convention on Biological Diversiy, art. 15(7) (Nov. 2, 2011), lttps://www.chd.int/ convention/articles/?a=cbd-15 [https://perma.cc/J3R9-94G2]. A legal framework for implementing this objective can be found in the Nagoya Protocol, a supplementary agreement to the CBD. Article 5(2) of the Nagoya Protocol enumerates, "Each Party shall take legislative, administrative or policy measures, as appropriate, in order that the benefits arising from the utilization of traditional knowledge associated with genetic resources are shared in a fair and equitable way with indigenous and local communities holding such knowledge. Such sharing shall be upon mutually agreed terms." See United Nations Environment Programme JUNEPi, Nagoya Protocol(Jan. 28, 2011), https://www.cbd.int/abs/text/ articles/?sec=abs-05 https://perma.cc/F5QU-9VAEI]. European Patent Convention (EPC1973), art. 56, https://www.epo.org/law-practice/legal-texts/ 67. html/cpc/1973/e/mal.html lhttps://perma.cc/3Z-'195QJ. 68. 69. Id. Id. art. 57. 2020] Protecting Soft Adaptation Technologies 29 demonstrating the utility of the robots in building dams more efficiently than previous methods. However, although some traditional or community knowledge soft technologies apparently fulfill the third requirement of patentability, the knowledge owners need to understand that the simple discovery of the intellectual processes or information is not patentable until its utility as a specific kind of climate change adaptation tool is sufficiently demonstrated. 70 In short, software, knowledge, know-how, or scientific processes soft high and modern technology adaptation technologies are entitled to receive patent protection if the claimed technological innovations fulfill all three requirements of patentability. But, under current IPRs systems, community or traditional knowledge adaptation tools are likely to face difficulty fulfilling all three requirements of patentability. These technologies, easily satisfying the utility requirement and often fulfilling the novelty requirement, at least technically, have more difficulties fulfilling the inventive step requirement. 4. Utility Model or Petty Patent However, if not under patent protection, traditional or community knowledge adaptation technologies may be brought under a petty patent or utility model protection. In general, a utility model can protect similar subject matter as a patent, but for knowledge that consists of a less-detailed inventive step. 7' To obtain utility model or petty patent protection, the knowledge must meet the novelty and industrial applicability criteria. 72 The protection term of a utility model is shorter than that of a standard patent, typically between six to fifteen years.73 Since, in many countries, the inventive step criteria is not required for utility model or petty patent protection,74 community or traditional knowledge soft adaptation technology may easily obtain this protection. Utility model protection is not mentioned in the TRIPS Agreement, 75 and few countries currently offer this type of patent protection. 76 However, this right is available in a few national legislations.7 7 Presumably, this utility model protection can better suit traditional knowledge adaptation technologies as the protections are structured differently. In Kenya, a type of utility As the TRIPS Agreement states, "patents shall be available for any inventions, whether 70. products or processes, in all Felds of technology, provided that they are new, involve an inventive step and are capable of industrial application." TRIPS Agreement, supra note 56, art. 27(1). COMM'N ON INTELL. PROP. RTS., INTEGRATING INTELLECTUAL PROPERTY RIGHTS AND 71. DEVELOPMENT POLICY, ch. 1 (2002), http://www.iprcommission.org/papers/pdfs/final_report/CIPR fullfinal.pdf [https://perma.cc/LS2J-9H8P]. Utility Models, WORLD INTELL. PROP. ORG., https://www.wipo.int/patents/en/topics/ 72. utilitymodels.html [https://perma.cc/4VYN-K36Z]. 73. Id. 74. Id. See generally TRIPS Agreement, supra note 56. See Utility Models, supra note 72 (showing a list of the countries which offer utility model protec76. tion under "FAQs on utility models" after clicking "In which countries can utility models be obtained?"). 75. 77. Id. ' LNTELL. PROP. & TECH. L. J. 30 (Vol. 25:1 model is mentioned in legislation, specifically protecting indigenous claims to traditional herbal medicine. 78 This kind of model could be used in other countries to protect traditional medicines or other soft adaptation technologies as traditional patents may be unattainable. Though, if attained, these patent protections would greatly improve the investment possibilities in the adaptation technologies sector. B. COPYRIGHT The Berne Convention provides copyright protection for "literary and artistic work." 79 Some copyrightable subject matters include novels, plays, poems, reference works, newspaper articles, computer programs, databases, 8 maps, advertisements, and technical drawings. " Hence, any policy or set of policies, which can be employed for climate change adaptation are protected by copyright as a database. Copyright protection is also possible for any 8 computer program, software, or application adaptation technologies. Since copyright extends to expressions but not ideas,82 in connection with soft adaptation technologies, knowledge, know-how, information, or methods themselves are not entitled to copyright protection until documented. But, once documented, the document with the soft adaptation technology is protected by copyright. In determining whether a copyright or patent is the most suitable protection of any climate change adaptation related program, software, or application, innovators may follow a general principle derived from some earlier discussions. During the 1970s and 1980s, discussions regarding the protection of computer software led to a consensus that computer programs should receive copyright protection, whereas gadgets which employ computer soft83 ware or software-related inventions should receive patents. This means any algorithm-based Al software, or any computer program, mobile application, or software employed for climate change adaptation shall necessarily be protected under copyright protection. But the devices that are run by these soft technologies are entitled to receive patent protection. Again, any method or know-how in association with utilizing those devices is also entitled to receive patent protection. However, and most importantly, community or traditional knowledge soft adaptation technologies that are undocumented cannot be brought under existing systems of copyright protection. 78. U.N. Conference on Trade and Development, Systems andlNationalExperiences for Protecting Traditional Kn owledge, Innovations and Practices, U.N. Doc. No. TD/B/COM.1 /EM.13/2 (Aug. 22, 2000). 79. World Intell. Prop. Org. IWIPO1, Berne Conventionfor the Protection of Literay and Artistic Works, art. 2(1), (as amended on September 28, 1979), https://wipolex.wipo.int/en/text/283693 [https://perma.cc/ B66R-9ZZTI. Frequently Asked Questions: Copyright, WORLD INTELL. PROP. ORG., https://www.wipo.int/ 80. copyright/en/faqcopyright.html [https://perma.cc/YS6V-257N. 81. Id. TRIPS Agreement, supra note 56, art. 9(2). Copyright Protection of Computer Software, WORLD INTELL. PROP. ORG., htps://www.wipo.int/ 83. copyright/en/activities/software.html [https://perma.cc/8U2A-LB9Bj. 82. 2020] C. Protecting Soft Adaptation Technologies 31 TRADEMARK Trademarks distinguish products or services from those of other entities. 84 Accordingly, the core scientific process, knowledge, know-how, or method employed for climate change adaptation, itself, is not entitled to re- ceive trademark protection. 85 However, if any organization or business entity offers commercial services based on that core knowledge, the organization or entity is entitled to protect their business services through a trademark. 86 For instance, if any business entity provides services for a newly invented and patented method of employing AI-based robots for building dams or sea-walls, the entity can receive a trademark or service mark that will distinguish their services to the countries or authorities buying them. Trademarks may act as both positive8 7 and defensive 88 means to protect some community or traditional knowledge, which will be especially true for traditional medicines. 89 For example, a company sells manufactured goods made from a traditional plant named ashvattha, which is indigenous to South Asia and works as a cure for dengue fever in the region.90 An indigenous community of south Asia, the original knowledge holders of ashvattha's medicinal use, may also want to sell ashvattha as a dengue curing medicine or gain profit out of their own natural resources and knowledge. They may register a trademark as South Asian Ashvattha or A traditional cure from South Asia. There are then two options for the community: First, if no patent exists preventing the sale of ashvattha as a cure of dengue, the community can register the above trademark and sell ashvattha using this trademark to distinguish their brand from other products manufactured from ashvattha. Second, if a drug manufacturing company already holds a patent for a drug made from ashvattha, the community will likely not be able to obtain a patent for ashvattha of their own for selling a dengue curing drug. However, they will likely still be able to register the above trademark and license it to the drug manufacturing company, which will ensure the genuineness of the company's manufactured drug for its consumers and bring profits to the original knowledge holders. 84. Trademarks, WORLD INTELL. PROP. ORG., https://w cc/MH6L-JNLU]. .wi)po.int/trademarks/en/ [https://perma. 85. Id. 86. Id. 87. TraditionalKnowledge andIntellectual Propery-Background Brief; supra note 65. 88. TraditionalKnowledge, supra note 25. 89. Cf Vera Shrivastav, Protection of TraditionalKnowledge Within the Existing Framework of Intellectual Property Rights: Defensive and Positive Approach, 1, 15 (July 7, 2014), https://papers.ssrn.com/sol3/papers. cfm?abstract_id=2463017 (explaining that "a database of traditional medicine has been compiled in India that can be used as evidence of prior art by patent examiners when assessing patent applications" without mentioning traditional medicine in general). 90. Ashvattha is a sacred tree of the South Asia region. It is considered sacred by Hinduism, Jainism, and Buddhism. Gautam Buddha meditated under the As/wattha tree and was enlightenment. See Kathopanishad & Bhagavadgita, "Of all the Trees I Am Ashvattha", OM SHANTI MANDIRAM, http://omshantimandiram.org/Ashvattha.html [https://perma.cc/9XY4-GB4M]. Please note that the 'Ashvattha' plant is mentioned here just as a hypothetical example. In practice, 'ashyattha' is not used as a medicine for dengue fever. ' ITELL. PROP. & TECH. L.J. 32 [[Vol. 25:1 This is also applicable to geographical indications, described below, which may be used to protect indigenous products or crafts if characteristics of those products can be attributed to their geographical origin. However, trademarks and geographical indications can only prevent the use of the protected marks or indications; they do not protect the knowledge itself or the technologies using that knowledge."' D. GEOGRAPH ICAL INDICATION A geographical indication ("GI") refers to "a sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin." 92 Usually, a GI contains the name of the place of origin of the goods. 93 While agricultural products are the most likely to have GIs because of local factors like climate and soil which make where a product comes from important, the application of GI is not limited to just agricultural products. 94 GIs may also be available for "specific qualities of a product that are due to human factors found in the product's place 95 For inof origin, such as specific manufacturing skills and traditions." stance, the term "Swiss Watch is a geographical indicator that designates a watch that originated from Switzerland" and is valuable because Swiss 9 watches are associated with a tradition of high quality. GI does not seem like a suitable option for newly invented scientific processes, knowledge, or adaptation tools if the technology in question is not generated from any specific regional people famous for generating that specific kind of knowledge or know-how. However, GI may be an option for protecting traditional medicine or plant knowledge that is employable for climate change adaptation. For instance, as mentioned earlier, the plant ash/attha is an indigenous 97 plant of South Asia which is used as a traditional medicine. As a hypothetical, a foreign company modified the plant so that it could grow on another continent. Afterward, that company started growing large quantities of the plant on a different continent and promoted the plant product as South Asian 98 Ashvattha. This would be an obvious improper use of a GI. South Asian Ash- COMM'N ON INTELL. PROP. RTS., supra note 71, at 73. Geographical Indications, WORLD INTELL. PROP. ORG., https://www.wipo.int/geo_indications/ en/ [https://perma.cc/8378-P6JW]. World Intell. Prop. Org. [WIPO], GeographicalIndications: An Introduction, at 8, https://www.wipo. 93. int/edocs/pubdocs/en/geographical/952/wipo_pub_952.pdf [https://perma.cc/GZQ2-BBGRI. 91. 92. 94. Id. at 10. 95. Id. & JUSTIN W. VANFLEET, TRADITIONAL KNOWLEDGE AND A HANDBOOK ON ISSUES AND OPTIONS FOR TRADITIONAL. KNOWLEDGE HOLDERS IN PROTECTING THEIR INTELLECTUAL PROPERTY AND MAINTAINING BIOLOGICAL, DIVERSITY 21 (2003). 96. See STEPHEN A. HANSEN INTELLECTUAL PROPERTY: 97. See Kathopanishad & Bhagavadgita, supra note 90. Cf TRIPS Agreement, supra note 56, art. 22(2)(a) (prohibiting "the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a 98. geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good," without mentioning any examples like South Asian Ashaattha). 2020] ProtectingSoft Adaptation Technologies 33 vattha is associated with a notable quality, and by using this name, the product that is not produced in South Asia deceives consumers by providing a wrong impression about the place of cultivation and, as such, the quality associated with the original place of cultivation. However, ashvattha grown only in South Asia will be able to obtain a GI as South Asian Ashvattha, if ashvattha grown in South Asia is commonly known to be of better quality than ashvattha grown in other parts of the world. In this way, all traditional medicine or plant related knowledge, which can be used as a tool for climate change adaptation, can receive GI protection. E. UNDISCLOSED INFORMATION OR TRADE SECRET Protection of undisclosed information or trade secrets is a kind of IPR for protecting confidential knowledge that can be sold or licensed. 99 To be a trade secret, knowledge or information must be commercially valuable and only circulated among a limited group of persons.1 00 Additionally, the legal owner of the secret must take reasonable steps to keep the information or knowledge secret.101 A reasonable step could be a confidential agreement or bilateral contract between the owner of the secret and business partners or research associates. As per this description, recently invented knowledge or information essential to climate change adaptation can easily receive this kind of IP protection, if the owner can meet the three requirements. If these are fulfilled, traditional or community knowledge adaptation technologies preserved within a community may be considered a trade secret, at least in principle. But the problem with traditional or community knowledge lies in keeping that knowledge sufficiently secret. Typically, trade secrets are governed with contractual agreements through which profit is gained from royalty payments for the use of the knowledge. 0 2 Most traditional knowledge is not governed this way, but the interesting advantage of this governing scheme is that, even if a trade secret is circulated to the public before the expiration of the contract, the contrac03 tual royalty payment may still remain in effect.1 In the 1880s, a United States ("U.S.") citizen, JJ. Lawrence, devel104 The oped an oral antiseptic trade secret, which he called "Listerine." See Frequently Asked Questions: Trade Secrets, WORLD INTELL. PROP. ORG., http://www.wipo. 99. int/tradesecrets/en/tradesecrets_faqs.html [http://perma.cc/Z3XIK-6APF}. 100. Id. 101. Id. 102. See id. Cf Warner-Lambert Phannaceutical Co. s. John J. Reynolds, Inc, CASE BRIEFS, https://www. 103. casebiiefs.com /blog/law/intellectual-property-law/intellectual-property-keyed-to-merges/trade-secretprotection/warner-lambert-pharmaceutical-co-v-john-j-reynolds-inc/ [https://perma.cc/ACU4-EG3W] (briefing Warner-Lambert Pharm. Co. v. John .J. Reynolds, Inc., 178 F. Supp. 655, 665 (S.D.N.Y. 1959)) (explaining that "[aln individual who acquires a trade secret or secret formula takes it subject to the risk that there may be a disclosure," without mentioning the issue of traditional knowledge). 104. Warner-LambertPharn. Co., 178 F. Supp. at 658. INTELL. PROP. & TECH. L. j. 34 [Vol. 25:1 formula was a trade secret he subsequently licensed to Warner-Lambert Pharmaceutical Corporation.' 0 5 The agreement in this case was that Warner-Lambert would pay royalties toJ.J. Lawrence and his heirs for the Listerine sold by the company.1 06 Decades later, the secret formula was published 107 in an American journal, releasing the trade secret to the general public. In the 1950s, a U.S. court ruled that even though the trade secret was now in the public domain, Warner-Lambert had to continue to pay royalties to Joseph J. Lawrence's heirs as called for under the licensing agreement.1 08 In accordance with this case example, for traditional knowledge or traditional medicine climate change adaptation technologies, protection through a trade secret can be a suitable choice if these kinds of agreements work. Usually trade secrets lose their benefits if and when the secrets enter the public domain." 9 But, if licensed properly and unlike patents, the bene- fits of a trade secret can continue for an indefinite period of time. So, for traditional knowledge adaptation technology holders, it can be a preferred option of protection, if it is possible to properly fulfill all conditions. F. SUI GENERIS Countries are free to "provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof."" 0 Countries can utilize the TRIPS Agreement's flexibility under a sui generis system, and traditional medicine knowledge holders can own rights to using plants that have medicinal values. Sui generis systems of protection can be tailored or modified to accommodate the special characteristics of traditional knowledge or folklore.' Sui generis systems, such as the International Union for the Protection of New Varieties of Plants ("UPOV")," 2 are already protecting plant varieties and databases." 3 The plant variety protection is also known as "plant breeder's 105. Id. at 658 59. 106. Id. 107. Id. at 659. 108. Id. at 662. Cf TRIPS Agreement, supra note 56, § 7, art. 39(2) (explaining that a trade secret remains 109. commercially valuable as long as the information "is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question," without directly mentioning the term "public domain"). § 5, art. 27(3)(b). See generally World Intell. Prop. Org. [WIPO], Elements ofA Sue Geis System for the Protection of TraditionalKnowledge, Third Session, WIPO/GRTKF/IC/3/8 (Mar. 29, 2002). The UPOV system was introduced through adoption of the International Convention for the 112. Protection of New Varieties of Plants held in Paris on December 2, 1961. Int'l Union for the Prot. of New Varieties of Plants [UPOV], AdditionalAct of November 10, 1972, Amending the InternationalConventionfor the Protection of Varieties of Plants, UPOV Pub. No. 293(E) (Nov. 10, 1972), https://www.upov. int/edocs/ 110. Id. 111. pubdocs/en/upovxpub_293.pdf [https://perma.cc/RQ83-C884]. 113. Council Directive 96/9/EC, 1996 OJ. (L 77/20) 2 (EC). 35 Protecting Soft Adaptation Technologies 2020] right" and any person or group of persons who "create or discover or de4 velop" any kind of plant variety can apply for this right." The Philippines passed legislation, the Indigenous Peoples Rights Act of 1997,' '5 which protects traditional knowledge by requiring the prior informed consent of the indigenous peoples before any release of the knowledge." 6 The Philippines is also considering provisions reserving the rights of the indigenous people over traditional knowledge such as ancestral lands, access to biological and genetic resources, and knowledge related to these sources."1 7 The consent must be obtained according to customary laws and every benefit derived from genetic resources or associated knowledge needs to be shared equitably with the community that originally 8 owned resources and knowledge associated with the genetic resources."1 Other countries can adopt similar kinds of benefit-sharing provisions for knowledge, information, and know-how associated with traditional or community knowledge based adaptation technologies. Thailand enacted the Protection and Promotion of Thai Traditional Medicine Intelligence Act of 1999 that protects traditional Thai medicines from bio-piracy and brings them under a kind of intellectual property protection." 9 The Act protects both "formulas" employed in manufacturing 20 traditional Thai drugs, as well as "texts on traditional Thai medicine." Taking into account these legislations, all countries can consider adopting a sui generis protection approach for protecting soft climate change adaptation technologies like knowledge, information, know-how, methods, policies, community knowledge, and traditional knowledge, including traditional medicines. Countries' approach for a sui generis protection can be designed by combining provisions that exist for different sets of IPRs and the nature of the knowledge that needs protection. CONCLUSION In pursuit of conferring commercial value for 'soft' kinds of climate change adaptation technologies by protecting them under IPRs, this study finds that the most suitable kind of IP protection for any specific technology depends on the nature of the concerned soft adaptation technology. The nature of high technology methods, processes, or know-how primarily fits Int'l Union for the Prot. of New Varieties of Plants (UPOV), Getting the Most Out of rourNew 114. Plant Variety, at 1-2, https://www.upov.int/export/sites/upov/about/en/pdf/wipoupov sme. pdf [https://perma.cc/9MTG-SFQKI. An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/ 115. Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for Other Purposes, Rep. Act No. 8371, § 32 (Oct. 29, 1997) (Phil.). 116. Id. 117. Id. §§ 4, 8, 35. Id. §§34-35. 118. 119. Act on Protection and Promotion of Traditional Thai Medicinal Intelligence, B.E. 2542, 14 (Nov. 19, 1999) (Thai.). 120. Id. § 14. §§ 6, LNTELL. PROP. & TECH. L. J. 36 (Vol. 25:1 best under patent protection, while the most suitable primary protection for any database, software, computer program, or mobile app soft adaptation technology is achievable under a copyright system. However, neither current copyright nor patent systems fully apply to community or traditional knowledge soft adaptation technologies. Instead, these soft technologies may obtain utility model or petty patent protections, in countries where legislation exists for granting such protection. Whether or not any soft adaptation technology is protected under patent or copyright, this paper argues that commercial values of those tech- nologies can be enhanced when business entities offer those soft technologies as a business service to protect their business' identity through trademarks or service marks. If any soft adaptation technology, whether modern or high technolo- gy, innovation, community or traditional knowledge, originated from a geographical background where that region is specifically known to generate that particular technology, people of those regions may obtain GI protection for that technology. This paper finds that traditional medicinal soft adaptation technologies seem most suitable for receiving GI protection. Inventors of soft adaptation technologies can also protect their technologies as trade secrets through non-disclosure agreements or bilateral contracts. The advantage of choosing trade secret protection is that, as long as the information remains secret among the agreement or contract signatories, no limitation exists for the period of protection. However, based on the nature of soft adaptation technologies, especially knowledge, know-how, or methods which result from community or traditional knowledge, countries may also think about how to bring these technologies under the current IPRs system. Some modifications or flexibilities regarding the conditions for copyrights and patents may entitle these soft technologies to receive protection more easily. For instance, countries can offer flexible 'novelty' and 'inventive step' requirements for community or traditional knowledge-based adaptation technologies. Finally, to avoid technical difficulties when modifying national legisla- tion to confer copyright or patent protection to community or traditional knowledge soft adaptation technologies, countries can design a sui generis or other special kind of IPRs system. Since countries have the freedom to design their own sui generis systems based on their needs, as well as the nature of their technologies in question,' 2' arguably, this will be the most suitable system offering due rewards for owners or innovators of these special kinds of soft adaptation technologies. 121. HANSEN & VANFLEET, supra note 96, at 27.