Though TK represents collective IP of communities or indigenous groups, with all its seemingly equitable and just objectives, TRIPS agreement does not include TK for IP protection. Prime reasons quoted for this glaring omission are the following:

• Possession is the most important basis to claim IP protection. TK, it is said, being a product of collective experience without an individual act of creation, is not recognized as IP.
• TK, being available for long periods of time, does not meet the criteria of “novelty” or “non-obviousness,” i.e., it is “prior art” – already available in the public domain.

On the contrary, not all categories under TRIPS protection are acts of individual creation. Trade secrets refer to information possessed by a firm which is protected. Such experimental data, design manuals, R&D reports, etc., that are protected may not be the result of individual act of creation. In this case, a firm or a corporation is seeking protection for the information which is also collective.

To the question of prior art, although TK is already available in certain parts of the world, it is not universally known. It is not prior art as it was never patented and so cannot be said to have entered the public domain.

Impact of the non-inclusion of TK under TRIPS has precipitated the following.