Author : Vidhi Shah
Intellectual Property is that the creation of human mind and intellect. Traditional Knowledge is deep rooted across the globe and some undisclosed information and other traditions. Traditional Knowledge is the data retrieved which is sustained and passed from generation to generation forming part of its cultural and/or spiritual identity. The knowledge possessed to various local communities are the experience gained over centuries through years of common practice. The traditional knowledge have roots from indigenous knowledge, medical knowledge, and knowledge of biodiversity, handicrafts, music, dance, song, stories and artwork. Having such wide scope it becomes very important to preserve and conserve such systems for their sustainable development. Also the continuous practice of some practice make t custom. These are the part of the knowledge which our ancestors have possessed knowing all the good qualities of the particular plant or the stone or any part which they think possess some qualities to heal the human body by their rare combination. I have covered the specific part of the Neem, Turmeric, and Basmati and their patent issues.
So what does intellectual property law protects? The intellectual property law protects the interest of the creators who have created using their idea by enforcing legal rights.
Patent are the exclusive rights granted to an inventor or assignee by a state for a limited period. Patent are part of intellectual property which implies monopoly to an assignee who has used his knowledge and skill to produce or process an innovation which involves an inventive step.
Traditional Knowledge is the knowledge of ancient roots often oral which is not protected by conventional intellectual property protection systems. Due to this, many countries have developed their own and specific systems for protecting traditional knowledge. India has also played a pivotal role in documentation of traditional knowledge and thereby protecting the same at the center stage of the International Intellectual Property System. Agreements with several international patent applications concerning India’s traditional knowledge have either been cancelled or withdrawn or the claims have been amended in several patent offices.
India and Traditional Knowledge
The tradition in India is as old as 5000 years and one of the 12 most diverse countries in the world. India’s ancient laws consists of four Veda, Upanishads, Epics, Puranas, Manusmriti, Shastra, Smriti and Srutis. India is home to a varied range of medicinal plants like herbs, shrubs, trees, and mangroves. The Ayurveda is the oldest and most effective alternative system to medicine. The Ayurveda is very popular and show effective results which make people believe in Ayurveda for the basic sickness. The traditional methods of medicinal systems includes Unani, Yoga, Ayurveda, Homeopathy and Siddha systems.
A brief understanding of what patent is – A Patent is a statutory right for an invention granted for a limited period to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.
“Patent” means a patent for any invention granted under the Patents Act, 1970. “Invention” means a new product or process involving an inventive step and capable for industrial application.
In India the Patent filing is regulated by:
- The Patents Act, 1970
- The Patents Rules, 2003
The Patent are granted for twenty years. The Patents Act, 1970 has been amended three times during all the years 1999, 2002, and 2005 to comply fully with the TRIPS provisions in India.
Traditional Knowledge Resource Classification (TKRC)
Traditional Knowledge Resource Classification (TKRC), is an innovative classification and systematic arrangement, dissemination of sub-groups related to plants, resources, disease, effects, administration etc.
The TKRC is mainly divided into the following sections:
A – Ayurveda
B – Unani
C – Siddha
Y – Yoga
Section A i.e. Ayurveda is divided into the following classes:
01 – Pharmaceutical preparations (Kalpana)
02 – Personal Hygiene Preparations
03 – Dietary (Food / Food stuff or Beverages)
04 – Biocides, Fumigatives (Dhupana, Krimighna)
The Pharmaceutical preparations are divided into following sub-classes based on the material used.
01A – Based on Plants (Audbhida)
01B – Based on Animals (Jangama)
01C – Based on Minerals (Parthiva)
01D – Characterised by Diseases (Roga)
01E – Characterised by Actions (Karma)
01F – Mode of Administration
01G – Miscellaneous
Why is it important to protect Traditional Knowledge?
Protection of Traditional Knowledge is one of the local and most complicated issue. The World Intellectual Property Organization (WIPO) defines traditional knowledge as – indigenous cultural and intellectual property, indigenous heritage, and customary heritage rights.
The information which is transferred from generation to generation within families or community without any adequate documentation.
Cases of Bio-piracy in India
What is Bio-piracy?
The term bio-piracy means the theft of several genetic resources and materials mainly the plant varieties in the form of obtaining patent. Once a material is patented, the owner could prevent that thing form being recovered by any other person even though the one is real owner of that property. Thus, by patenting the traditional knowledge of indigenous people the corporate can restrict the people from use of their traditional knowledge and thus it affects the livelihood of native people.
Turmeric is a flower plant from the ginger family and has its roots from the rhizomes plants.
Turmeric are used as a spice for flavouring in Indian cooking. Which also holds good ingredient in medicines, and cosmetics. Traditionally used for centuries to heal wounds and rashes. It has properties of anti-parasitic for skin infections. The turmeric was patented in the US this has been a general concern where the Indian origin knowledge’s have been registered as patent showing their origin. But India had also made sure to challenge the decision.
The turmeric powder is topical for wound healing, where for the same a patent has been granted at the University of Mississippi Medical Centre, a US patent. This was further challenged by The Council of Scientific and Industrial Research (CSIR), India, New Delhi and a re-examination application was filed with US Patent Office claiming the use of turmeric powder was no novel invention and the medicinal use existed since ages. All the supporting evidence of ancient Sanskrit were presented. Later, the US Patent Office revoked this patent stating the patent were obvious and agreeing the use of turmeric having been known in India for centuries.
Neem extracts are being used to treat pests and fungal diseases also on food crops. The neem oil is also used to cure cold and flu as well as to treat skin disease with mixed in the soap, the barks, leaves, twigs helps us in treating diseases ranging from diabetes to leprosy. Neem twigs are also used as tooth brush since long. Ayurveda believes that Neem plant has components such as anti-fungal, anti-viral, anti-diabetic, anti-bacterial, and contraceptive.
The patent was filed by Corporation W.R Grace Company and US Department of Agriculture for a method as said invented by them to control the fungi on plants by extracting neem oil. The patent was granted by the European Patent Office. Later on, the representatives of the Indian farmers opposed against patent. They showed evidence that the effects of Neem seeds has been known and used for centuries in Indian agriculture and therefore, is un-patentable. The disclosed facts were considered and hence proved the patent did not involve any inventive step and the patent revoked.
Basmati rice is the type of an aromatic rice grown in regions of India and Pakistan. Rice is the staple food in most parts of Asia, including India and Pakistan. The farmers in the region have grown and conserved a distinct varieties of rice for centuries. Basmati rice are the variety of long and aromatic rice which have roots in India.
An American company ‘RiceTec’ was granted US Patent on ‘basmati rice lines and grains’. The patent includes basmati and basmati-like rice. The company also claimed that it’s the novel innovation of them creating such rice. Which also caused crisis between India and United States. The Indians claimed that the innovation they are claiming are false, India threateningly took the matter to WTO as violation of TRIPS. Later, RiceTec withdrew the claims of the patent. RiceTec were allowed to patent the product which were their kind of innovation in the basmati rice variety.
There is an African proverb that,
“When an old person of knowledge dies, then a whole library disappears.”
According to this proverb, the Traditional knowledge is one which has roots deep in every community around the world. And this knowledge was more helpful for their sustainable development and livelihood.
To explain Traditional knowledge in a laymen’s language, a Traditional Knowledge is a piece of knowledge which is gathered by accumulation of load of experience that are tested and tried over a very long period in a specific place or community and the people of that place are well adapted to those local environment and local culture whereby they would not attempt to maximise their income but they tend to minimise their risks. And by this, one should understand that a Traditional Knowledge is a collective piece of knowledge and only a whole community can claim a right but never a single individual can claim a right over traditional knowledge.
A report by World Health Organisation says that about 80 percent of World’s population is depending on the traditional knowledge on the ancient medical methods for curing disease. The traditional knowledge is based on indispensable for its primary health care uses. For an instance, the Neem and its use can be registered under traditional knowledge by indigenous people of India for its medical uses which includes first aid, cosmetic nature and for curing inflammation and redness caused by any medical issue. In South India, the anti-fatigue agent based on a medicinal plant called “Jeevani” is a piece of traditional knowledge known within “Kani Tribes‟. This is based on an herbal plant used for medical purpose and it is called “arogyapaacha”. Certain other traditional knowledge are as follows:
- Ulcer treating medicine in Thai traditional healing method is by the use of ‘plao-noi’
- The Western Amazon tribes prepare various kind of medicines by using a plant called ‘Ayahuasca’ vine.
- The San people stave off hunger by using ‘hoodia’ cactus while out hunting.
WIPO on Traditional Knowledge
As per the WIPO, a Traditional Cultural Expression (TCE) is considered as idea of knowledge such as traditional medical use of a plant or a traditional ecological management practices but they are different from the expression or representation of our traditional cultures such as traditional song or any other graphic design. In this section the review of the current debate on protection of traditional knowledge which is now in a blooming stage is not considered as a priority area for many countries but WIPO as well as other such international organisations are in consideration regarding this field. As per the WIPO convention report, the Traditional knowledge holders say that there is a holistic relationship between their traditional knowledge and genetic resources form a part of the indigenous environment and TCE or the expression of the folklore which is the reflection of their cultural identity. A committee was set by the WIPO in year 2001 for addressing the issues regarding traditional knowledge and folklore comprehensively and that committee was called as Intergovernmental Committee on Intellectual Property and Genetic Resources and ultimately it considers to protect bot the traditional knowledge and TCEs together concerning the aspect of intellectual property of genetic resources.
Protection of Traditional Knowledge under Indian Patent Law
The patent law in India is granted to any innovator for his invention with a monopoly. So, the traditional knowledge does not own any invention monopoly it is something which is inherited from generations to generations. So no single person can claim the patent of traditional knowledge because it is a knowledge of a particular community people on the whole. Thus, traditional knowledge cannot be protected under the Indian Patent Act. From the before said it is clear that the traditional knowledge will not be approved for registration under Indian Patent Act.
Protection of Traditional Knowledge under Indian Trade Secrets Act
Traditional knowledge in trade secrets is possible for people because it is not as expensive as Patent Act. The trade secret also deals with protecting a secret of a community people who are always conscious about protecting their know-how which they have inherited, by this traditional knowledge can be protected under Trade Secrets Act. Though Indian traditional knowledge is varied and rich. India is blessed with many abundant resources which are very useful. The Indian intellectual property laws fails to protect the traditional knowledge. But there are certain ways for protecting and preserving the traditional knowledge.
The traditional knowledge is something which is to be protected as asset for all the local communities and livelihood. Traditional knowledge also helps Indian economy since all the novel products have commercial value. Through traditional knowledge, we conserve and protect the biodiversity and the secrets provided to us by our ancestors.
The documentation of traditional knowledge prevents the chances of bio-piracy whereby protecting the misuse and misappropriation by third parties. The preventive step herein would be regularly updating of Traditional knowledge Digital Library (TKDL) and should be maintained by a team either Central or by the State government. TKDL play a role in protection with existing systems. WIPO members want to make mandatory for patent applications to show source of origin of resources, as well as evidence of prior informed consent and a benefit sharing agreement. India is a developing country while concentrating in development should also concentrate in pending the inborn knowledge of country as well.
 Definition as per Patents Act, 1970
 http://www.tkdl.res.in/tkdl/langdefault/common/TKRC.asp (Viewed on 13 December 2009)
 http://www.mondaq.com/india/x/344510/Trade+Secrets/PROTEC TING+INDIAN+TRADITIONAL+KNOWLEDGE+AS+INTELLECT UAL+PROPERTY