Traditional Knowledge (TK) is the skills, practices, methods, and know-how, that have been carried on from generation to generation within a community. It embraces the cultural expressions of various communities, keeping the traditional identity intact. With the advancement of technology and the creation of a dynamic, innovation-centric environment – traditional knowledge has been key in giving way to new products and inventions, obvious examples of the same would be – products made out of neem and turmeric. From cosmetics to supplements, nowadays everything has natural herbs and other such qualities which were earlier regarded as home remedies made by the elderly in every household.
Bittersweet Relationship Of Traditional Knowledge And Patents
There are mainly two schools of thought on this issue: First is of the opinion that TK is something that is in the public domain and therefore, can be patented. The second stands firm on the stance that in most cases patenting Traditional Knowledge could lead to misappropriation, biopiracy and unsustainable uses. Further, Section 3(p) of the Patents Act also says that TK shall not be considered as an invention or an innovative idea. However, this stands valid for documented TK only.
What About Undocumented Traditional Knowledge?
This is where the Traditional Knowledge Digital Library (TKDL) comes into the picture, particularly for the Indian Ayurvedic system of medicine. So far, TKDL transcribed 35,000 formulations used in the Ayurvedic system of medicines followed by converting such transcriptions into patent application format which includes – description, method of preparation, and claim.
The initiative of TKDL by the government of India has been a crucial step towards revoking and retracting the patent of turmeric by the United States Patent and Trademark Office (USPTO) and the patent on neem by the European Patent Office (EPO). TK with regards to the medicinal effects of Turmeric and Neem has been existing in India for years in various vernacular languages. What TKDL has been doing is that they are publishing ancient texts in foreign languages of English, French, Spanish, Japanese and German, with the help of IT processing tools.
The Neem Case
India filed an opposition against the neem patent granted by EPO to W.R. Grace and the Department of Agriculture, USA. India was successful in proving that neem contains a number of compounds which are beneficial for cases of Diabetes to Skin diseases and the same has been written in the Indian Ayurvedic texts.
EPO found that the invention was not novel or innovative and is similar to prior art and thus, revoked the patent which was granted.
The Turmeric Patent
A patent was granted to the University of Mississippi Medical Centre on turmeric for its wound healing properties in the year 1955. India raised an objection to the same and provided evidences that turmeric has been in use for centuries. On examination of such evidences, USPTO revoked the patent as the claim put forward by India was found to be known and obvious.
The Concept of Benefit Sharing
Section 2(a) of the Biodiversity Act, 2002 read with Section 6(2) puts emphasis on the concept of ‘benefit-sharing’ with respect to the product or process derived or made with the help of knowledge and for commercial purposes which is conserved with the ‘benefit claimers. Benefit claimers are referred to as the ones who are the holders of knowledge of the use and benefits of such biological resources and innovation in relation to the use and application.
Benefit holders are the ones who hold the traditional knowledge. The National Biodiversity Authority has been taking the initiative to protect the benefit holders by way of agreements in relation to benefit-sharing that is made between the Traditional Knowledge holder and the inventor who wants to make use of the Traditional Knowledge for commercial inventions and use.
One of the best examples of this is that of the Jeevani and the Kani Tribes – where a patent on the fruit from the Jeevani plant’s ability to boost energy was given to the Tropical Botanical Garden Research Institute. The Kani Tribe of Kerela at the Western Ghats used fruits of Jeevani to ease fatigue. In this instance, the patent holder divided 50% of the earnings with the TK holder.
It is obvious that there needs to be a well-regulated balance between Traditional Knowledge and its patent applicability. If used in the right way, without exploiting its source or demeaning its cultural and traditional identity TK can give way to a lot new innovations and exceptional economic growth. Achieving socio-economic harmony between the Traditional Knowledge holder and the inventor must be of the utmost importance.
This article is written and submitted by Teesha Seth during her course of internship at B&B Associates LLP. Teesha is a B.A. LLB 5th year student at Damodaram Sanjivayya National Law University.