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12 May 2017

Protection of traditional knowledge in India

It is a well-known fact that India as a country is rich in traditional knowledge (TK) which has been passed on across generations. Indian traditional knowledge is expressed in languages such as Sanskrit, Arabic, Persian, Urdu and Tamil; there is also a large body of unwritten knowledge that is passed on orally from one generation to another. Ancient traditional knowledge is vital to the identity of most local communities in India. TK also helps local communities thrive by way of culture, healthcare, trade and development, etc. TK is being commercially exploited in India and other countries by patenting. Patenting the already existing TK prejudices the interests of rightful owners and prevents others from using such TK.

 

For a patent to be granted, the basic requirements are novelty and inventive step. Novelty means it’s new i.e., the subject matter has not fallen in public domain. Inventive step means a feature of an invention involves technical advancement as compared to the existing knowledge or having economic significance. On filing patent application in any of the countries, patent examiners search all the available databases worldwide in an attempt to ascertain novelty and inventive step. The United States Patent and Trademark Office (USPTO) had granted a patent on the wound healing properties of turmeric to University of Mississippi medical center in 1995. Turmeric is widely used in India as spice, in medicines, cosmetics, and to heal wounds which prompted India’s Council of Scientific and Industrial Research (CSIR) to challenge the university regarding the novelty. The USPTO cancelled the patent due to lack of novelty. The European Patent Office (EPO) had granted a patent on the antifungal properties of neem to W R Grace, a US-based company in 1994. The hydrophobic extracts of neem seeds were known and used for centuries in India, both in curing dermatological diseases in humans and in protecting agricultural plants from fungal infections. Research Foundation for Science, Technology, and Natural Resource Policy, New Delhi opposed the patent, leading to the cancellation of patent by the EPO.

 

The landmark disputes related to cases of turmeric and neem increased awareness in protecting ancient traditional knowledge and Traditional Knowledge Digital Library (TKDL) was established in 2001. India is the only country in the world that has set up a TKDL for ancient traditional knowledge. TKDL has been developed collaboratively by the CSIR and the Department of AYUSH (Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy). TKDL is a database which contains ancient texts translated into five international languages- English, French, German, Japanese and Spanish. The millions of pages of information have been formatted and structured using Traditional Knowledge Resource Classification System (TKRC) along the lines of a patent application. India’s traditional knowledge is available to patent examiners of International patent offices in patent application format and in a language that is understood by them. This is to ensure that international patent offices do not grant patents for applications that claim India’s traditional knowledge. Prior to this initiative ancient texts were neither accessible nor understood by the patent examiners of International patent offices to which the patent applications had been submitted. Hence the claimed inventions cleared novelty criterion and were granted patents.

 

The TKRC system is based on WIPO’s International Patent Classification (IPC). The medicinal formulations related to Ayurveda, Unani, Siddha and Yoga are classified into 27,000 subgroups. These subgroups assist patent examiners to search easily and retrieve relevant information. Indian patent office has issued guidelines for examination of patent applications relating to traditional knowledge to enable examiners to analyze the applications effectively. The 27,000 subgroups of TKDL for medicinal formulations were linked to IPC in 2004, before which there was only one subgroup for medicinal plants. More than 900 yoga postures from 14 old yoga books have been documented in the TKDL database. There are thousands of patents, trademarks and copyrights taken on yoga in the US alone.

 

TKDL could be accessed by other international patent offices only after signing a TKDL Access Agreement including Non-Disclosure Agreement with India. TKDL access is restrictive in order to protect the interests of TK holders/owners and safeguard TK from being misused. Currently access to TKDL is available to nine international patent offices which include European Patent Office, United States Patent & Trademark Office, Japan Patent Office, United Kingdom Patent Office, Canadian Intellectual Property Office, German Patent Office, Intellectual Property Australia, Indian Patent Office and Chile Patent Office. As per the agreement, examiners of patent offices can utilize TKDL only for search and examination purposes. They are restrained from sharing the contents of TKDL to any third party unless it is necessary for the purpose of citation.

 

Bio piracy has been a major concern and TKDL has been successful in mitigating bio piracy. TKDL is integrated with a system that monitors the patent applications related to Indian medicinal systems filed at any patent office. CSIR could submit third party observations where such patent applications have been filed in order to get the applications cancelled. Also, pre-grant oppositions could be filed along with prior-art evidences by CSIR. Already, hundreds of patent applications filed by pharmaceutical companies of various countries have been cancelled, withdrawn or amended at very less cost thus reducing the threat of bio piracy. The objective of TKDL is to ensure that patents are not granted wrongfully due to lack of access to India’s traditional knowledge.

 

 

Conclusion:

Until now TKDL has worked efficiently for the intended purpose. However, some media reports suggest that due to inadequate budgetary allocations, TKDL may cease to function. If true, this would be a big blow to TK protection and to safeguard interests of local communities. Without a TKDL database, getting the patent applications cancelled could be expensive and time consuming. In case the government does plan to discontinue TKDL, it should provide an alternative to prevent wrongful claims over TK of India. Else, we will only be playing into the hands of those desirous of commercially exploiting India’s TK by claiming patent rights over what India has known for centuries.

 

References:

http://www.wipo.int/wipo_magazine/en/2011/03/article_0002.html

http://www.ayush.gov.in/sites/default/files/tkdl.pdf

http://pib.nic.in/newsite/erelcontent.aspx?relid=61511

http://www.csir.res.in/documents/tkdl

http://www.insightsonindia.com/2017/03/24/6-light-council-scientific-industrial-researchs-csir-decision-close-csir-tech-critically-examine-issues-involved-filing-patents-using-public-money-india/

http://www.thehindu.com/news/national/no-committed-funds-for-csir-library-on-ayurveda-yoga-and-unani/article17621132.ece

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