Introduction
Non-physical property that is the result of original thought is referred to as intellectual property. Tradition-based literal, artistic, or scientific works; performances; scientific discoveries; designs; marks, names, and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary, or artistic fields are defined as traditional knowledge.
Traditional Information (TK) is a living body of knowledge that is generated, maintained, and passed down through generations within a community, typically as part of the community’s cultural or spiritual identity. Traditional knowledge, which has ancient origins and is frequently informal and oral, is not covered by traditional intellectual property protection laws.
As a result of this circumstance, several developing countries have developed their own unique mechanisms for safeguarding traditional knowledge. India has played a pivotal role in the documenting traditional knowledge, placing traditional knowledge protection at the forefront of the international intellectual property system.
Whether Traditional Knowledge is Protected under the Indian Patent Law?
Traditional Knowledge is difficult to fully safeguard under any type of intellectual property protection due to its nature. Traditional knowledge is defined as information that is passed down orally from generation to generation within a community or within a family within a community without proper documentation.
In terms of patents, Indian law grants a patent to an individual for an invention that meets the criteria of novelty, usefulness, and non-obviousness. Traditional knowledge lacks novelty and non-obviousness because it is the information passed down from generation to generation, hence lacking the aforementioned criteria. Furthermore, no single person can be defined as the proprietor of traditional knowledge, which is owned by a community as a whole rather than a single individual. This demonstrates that traditional knowledge is prohibited from being protected under Indian patent law.
In India, the Biological Diversity Act and the Forest Rights Act of 2006 both provide a safeguard for tribal traditional knowledge while also honoring and preserving local populations’ biological expertise. In these kind of cases, knowledge is primarily owned by the community as a whole.
Traditional Knowledge Digital Library (TKDL)
TKDL is a groundbreaking Indian government program that arose from India’s efforts to have a patent on the wound-healing capabilities of turmeric revoked by the USPTO and a patent on the antifungal properties of neem issued by the European Patent Office (EPO).TKDL uses information technology tools and an innovative classification system called Traditional Knowledge Resource Classification (TKRC) to translate ancient texts on Indian Systems of Medicines, such as Ayurveda, Siddha, Unani, and Yoga, into five international languages, including English, Japanese, French, German, and Spanish.
TKDL has revoked or withdrawn multiple patent applications attempting to claim rights over the use of various therapeutic herbs to date. The TKDL in India is an unrivaled tool that has played a critical role in safeguarding the country’s traditional knowledge.Bio-Piracy is the misappropriation of conventional knowledge with the goal of obtaining a monopoly on the knowledge through a patent. These TKs are vulnerable to Bio-Piracy due to a lack of a consistent and stable protection scheme.Because so much TK is linked to biological resources, it can be valuable in generating useful products, particularly in the sphere of health care, which is primarily employed as a revenue grab by industrialized countries. TK coming from India has been the subject of numerous cases of bio piracy in the past.
A few of the most important have been discussed here.
- The Basmati Case
Rice Tec was given a patent by the USPTO on September 1997 for a Basmati rice strain, an aromatic rice that has been farmed in India and Pakistan for millennia. Although rice has long been a common diet in southeast Asian countries such as India and Pakistan, and several varieties of rice have been cultivated and maintained by farmers for ages to suit varying tastes. Rice Tec simply tweaked it slightly by crossing it with a Western grain strain, then claimed it as its own, resulting in a severe example of bio-piracy. The TRIPS agreement, which allows for patents on biotechnological processes, was also called into question in this instance.
Only three of the 20 claims in RiceTec Inc.’s original patent application were appealed by the Indian government. Only assertions about some qualities of basmati rice were being contested (specifically starch index, aroma, and grain dimensions).It should be highlighted that the WTO Agreement does not oblige governments to safeguard plant types with patents. It just requires countries to pass legislation to safeguard plant variety in some way (not necessarily through patents).
However, because the United States is a big supporter of patent protection for plant types, the patent application was granted. RiceTec’s three strains have been granted patent protection, allowing them to call it rice “Superior Basmati Rice.”
- The Neem case
Neem is a tree with antibacterial qualities that has been used in medicinal preparations for ages for the purposes of healing and insecticide, according to ancient Ayurvedic scriptures dating back to 5000 BC. The agricultural department of the United States, as well as the global firm W.R. Grace, submitted a patent at the EPO for a method of controlling fungi on plants involving contacting the fungi with a Neem oil formulation,’ which was later awarded patent protection by the EPO. India, on the other hand, has lodged an objection to such a grant. The EPO cancelled the patent due to a lack of originality, inventive step, and perhaps form a relevant prior art.
- The Turmeric Case
Turmeric is a tropical herb native to India’s east coast. Turmeric powder is used as a medication, a food ingredient, and a dye in India, to name a few applications.
The United States granted the University of Mississippi Medical Center a patent on turmeric in 1995 for its wound-healing properties. The claimed topic was the use of “turmeric powder and its administration” for wound healing, both orally and topically. An exclusive right to sell and distribute has been awarded.The Indian Council for Scientific and Industrial Research (CSIR) has filed a patent opposition and furnished the USPTO with detailed prior art information.The invention was cancelled by the USPTO, which stated that the claims in the patent were obvious and anticipated, and that the application of turmeric was an old art of wound healing. As a result, in the Turmeric case, the TK that belonged to India was protected.
- The Golden Rice Case
The title “golden rice” implies that the rice is exceptional in terms of quality. This golden rice is a type of rice that has only been grown in a few test plots in the Philippines and has never been seen before.Syngenta and the International Rice Research Institute now own the patent. Despite such claims, no such distribution or manufacturing of golden rice has occurred in the last two decades. In addition, the genes utilized as constructions for the vitamin A rice are patented by Novartis, a worldwide pharmaceutical company, and Kirin Breweries, a Japanese brewery.As a result, these gene tycoons, such as Novartis, Syngenta, and Monsanto, have claimed sole control of basic rice research patents, despite rice being a staple of Southeast Asian culture.
This also raises the possibility that this Asian staple will be reduced to “intellectual property” for commercial gain by these corporate behemoths. These organizations have announced that they will grant royalty-free patent licenses to poorer countries for the development of rice for humanitarian purposes.The important aspect to note here is that none of the firms were willing to relinquish their rights for the aforementioned humanitarian causes. Furthermore, the offer of undertaking bio-diversity studies in countries wanting to plant golden rice was not favorably received by developing countries.These questionable actions by these firms render the royalty-free license arrangements a ploy for establishing a monopoly over rice cultivation and converting Indian farmers to serfs.The complicated set of licensees involved in the transfer of technology related to Golden Rice is less likely to alleviate India’s vitamin A problem and more likely to be an effective strategy for corporate takeover of the country’s rice production.
Contributed by:– Nidhi Jha, Legal intern at LLL
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