Traditional Knowledge and its Implications
Traditional Knowledge (TK) is the knowledge available in public domain that can be freely exploited for commercial and industrial use. However in the recent past, the commercial benefits derived from such TK have led some conceited interests to seek patents on the traditionally known properties and processes. There have been many instances of bio-piracy of TK, especially of the TK from India. The grant of patents for the wound healing properties of turmeric (USPTO), the hybrid basmati rice (USPTO) and the fungicidal properties of neem (EPO) are some classic examples of a monopolistic approach to own the TK. Though on intervention by Indian Government represented bodies, these patents were revoked on grounds of prior art and lack of novelty, the revocation of the patents resulted in costly legal battles lasting for several years. Cancellation of the patent for turmeric took 2 years, whereas that for neem took 10 years. It took seven years and approx. INR 7.62 crores in legal fees for India to fight the IPR battle for basmati rice.
Considering the costly experiences and the hijacking of its TK, the Indian Government recognized the need to preserve and protect the rich TK of its people from bio-piracy. The solution that was figured was a systematic and proper documentation of TK. The Traditional Knowledge Digital Library (TKDL), a database containing traditional medicinal formulations and yogic postures was hence created. The main objective of the library was to digitally document the rich TK of the country and to prevent misappropriation of that knowledge.
TKDL is a collaborative project between the Council of Scientific and Industrial Research (CSIR), Ministry of Science and Technology and Department of AYUSH, Ministry of Health and Family Welfare, and is being implemented at CSIR. An inter-disciplinary team of experts in Traditional Indian Medicine (Ayurveda, Unani, Siddha and Yoga), patent examination, IT and science were involved in its creation. The TKDL documents existing TK literature related to Ayurveda, Unani, Siddha and Yoga, available in the public domain, in digitized format in five international languages, namely English, German, French, Japanese and Spanish.
TKDL utilizes Traditional Knowledge Resource Classification (TKRC), an innovative classification system that has been created with about 25,000 subgroups. Based on the TKRC, about 200 subgroups have been incorporated into classification A61K 36/00 of the IPC. As it stands today, the TKDL has documented 97,337 Ayurvedic formulations, 1,75,150 Unani formulations, 23,016 Siddha formulations and 1,680Yoga postures.
The Indian Government has granted the access of TKDL to seven International Patent Offices, namely USPTO, EPO, GPO, UKPTO, CIPO, IP Australia and JPO, under a TKDL (Non-Disclosure) Access Agreement. This has resulted in preventing the grant of patents on TK. TKDL achieved one of its earliest successes when the EPO cancelled its intention to grant a patent to Spanish Company, Perdix SL for its anti-vitiligo cream, containing melon extracts used to treat leucoderma. Melon extracts have been a part of Indian traditional medicine and have been used to treat skin ailments. The cancellation was achieved within a time span of three weeks, as compared to the lengthy litigations described above. More recently in April 2014, Nanyang Polytechnic, Singapore, has withdrawn its application for "A plant extract comprising statins and preparation techniques and uses thereof" based on the TKDL evidences. Citing of TKDL references as prior art has led significantly to achieving the goal of preventing the misappropriation of Indian traditional knowledge.
Since July 2009, 571 evidences have been submitted based on TKDL, which has led to the rejection/revocation/cancellation of 88 applications/patents of pharmaceutical companies of the US, Great Britain, Japan, Spain, Italy, China. It has also been reported that after the introduction of TKDL, there has been as much as a 44% decline in patent claims filed on Indian systems of medicine. At the Conference of Parties to Convention on Biological Diversity in October 2012, the then Prime Minister, Mr. Manmohan Singh indicated that India may win 105 claims on international patents due to the Traditional Knowledge Digital Library (TKDL).
Considering the novelty, utility and its effectiveness in preventing the grant of patents claiming TK, several countries and organizations have expressed their keenness in replicating the TKDL model for their own countries. An International Conference on utilizing India’s TKDL as model for protection of TK was held by CSIR and World Intellectual Property Organization (WIPO) in March, 2011 at New Delhi in which 33 developing countries participated. Though India presently is not a member of the IPC union, the Indian TKDL database has been chosen for a pilot study by 170 member states of WIPO.
A few countries like China and Venezuela have also documented their traditional knowledge. In China, the Traditional Chinese Medicine (TCM) Patent Database has been compiled by the State Intellectual Property Office (SIPO) and it contains bibliographic records and TCM formulas. In 2008, the Chinese State Intellectual Property Office (SIPO) granted the European Patent Office access to its database on TCM. Venezuela’s Biozulua database contains data about medicinal plants and food crops, which are provided by twenty four ethnic groups living in the Amazonian jungle.
Since its inception, TKDL has had its fair share of supporters and critics. While documentation of TK prevents misappropriation and the grant of wrong patents, critics of this approach argue that it might, on the other side, promote bio-piracy. Much of the information contained in the database was taken from ancient classical texts, which the "common man" had no access to, or did not understand (even if accessible). Now that this information is put on paper and in an easily understandable form, it is prone to misuse. Also the documentation of TK has raised debates regarding the sharing of benefits arising out of the use of such knowledge. Mere documentation only serves a defensive purpose but does not lead to sharing of benefits to the holders of the knowledge. Supporters of the approach argue that the database is not accessible to third parties and that foreign patent offices with access to the database are legally bound to not disclose the information to third parties.
In order to achieve clarity in the status of TK database initiatives in India, the approach taken by the Peruvian Government in documentation of TK could have been considered. In Peru, TK is documented in different registers, based on the source of the knowledge. The Public National Register documents knowledge in the public domain and is open to all third parties. Private domain knowledge is documented in the Confidential National Register and cannot be accessed by third parties. These registers are maintained by National Institute for the Defense of Competition and the Protection of Intellectual Property (INDECOPI). The local registers are maintained by the indigenous groups in accordance with their practice and customs.
The main objective of documenting TK was to help curb bio-piracy. But it is feared that it might promote bio-piracy as the easy access to TK that was not known before. Though, documentation of TK helps reduce the time and money involved in contesting grant of frivolous patents, this approach has its own limitations. Public disclosure of such knowledge might lead to unauthorized use and commercial exploitation. Moreover the fact also remains that the knowledge has now gone out of hands and can cause no good other than a mere self-proclamation!!
Surana and Surana International Attorneys
Anjana Devi. S
Intern, Surana and Surana International Attorneys
Pursuing LL.B(Hons.), Rajiv Gandhi School of Intellectual Property Law, IIT-Kharagpur