By Johny Solomon Raj and Swaraj Singh Raghuvanshi
India is one of just 17 countries in the world to be designated as a mega biodiversity hotspot. India is home to 7.8% of the world’s recorded plant and animal species despite having just 2.5 percent of the land area. In India, biodiversity is primarily understood at three levels: species, genetics, and ecosystem. [1]
One of the most complicated issues faced in India, as well as many other oriental nations is to protect the Traditional Knowledge (TK) possessed by people through ancestral community inheritance. It is generally not protected, as it ordinarily fails to meet the modern criteria of IP protection (primarily that of originality, novelty or uniqueness, and arising from identifiable individuals or entities), however holds as much importance in the livelihoods of indigenous people, local communities, and developing nations, such that governments (mainly in non-Western parts of the world), have demanded equivalent protection for traditional knowledge as compared to modern industrial innovations.
What is Traditional Knowledge (TK)?
“A People without the knowledge of their past history, origin and culture is like a tree without roots” – Marcus Garvey
Traditional Knowledge (TK) is a living body of knowledge that is developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. Owing to its living nature, Traditional Knowledge is also not given to easy definition.
Members of the World Intellectual Property Organization (WIPO) established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in 2000, and in 2009, they agreed to develop an international legal instrument (or instruments) to provide effective protection for traditional knowledge, genetic resources, and traditional cultural expressions (folklore). These instruments could vary from a proposal to WIPO members to a formal treaty that would bind countries choosing to ratify it. WIPO members acknowledged that treating traditional and indigenous knowledge, as well as traditional forms of creativity and innovation, as protectable intellectual property would be a huge breakthrough in international law, enabling indigenous and local communities, as well as governments, to have a say in how their traditional knowledge is used by others. This would let communities to govern and benefit cooperatively from their economic exploitation, for example, by protecting traditional remedies and indigenous art and music against misappropriation. [2].
Traditional Knowledge (TK) is mostly undocumented and typically inherited, by way of oral transmission (whether individually or as a community), or by observation. Three distinct and related areas recognized by WIPO in this context are:
- Traditional knowledge, i.e., in the strict sense, namely technical know-how, practices, skills, and innovations related to, inter alia, biodiversity, agriculture or health. eg.) Traditional Healing Practices i.e., physical, mental and spiritual practice such as Yoga or Ayurveda;
- Traditional Cultural Expressions, encompassing oral folklore or folk histories, music, art, designs, symbols and performances;
- Genetic Resources, i.e., the genetic material of actual or potential value found in plants, animals and micro-organisms, native to a particular country or region, and known and used by traditional communities. E.g.) Use of turmeric (Curcuma Longa) or Neem (Azadirachta Indica) in India for medicinal purposes; or cultivation of Basmati Rice (Oryza sativa).
It is sadly quite common, that foreigners or savvy corporates often mine indigenous traditional knowledge, cultural expressions, or even native genetic resources for restrictive patents or other intellectual property rights, thereby depriving the actual inheritors of that knowledge from deriving recognition and benefits from it.
History of Turmeric
Historically, turmeric has been co-opted in Ayurveda and other traditional Indian medical systems owing to its rich medicinal benefits. Turmeric, a plant in the ginger family, is native to Southeast Asia and is grown commercially in the region, primarily in India. Its rhizome (underground stem) is used as a principal culinary spice and traditional medicine, namely for treatment of disorders of the skin, upper respiratory tract, joints, and digestive system, as well as a dietary supplement for a variety of conditions, including arthritis, digestive disorders, respiratory infections, allergies, liver disease, depression, and many others [3]. Turmeric is a plant that has been used for curative purposes for since four thousand years. In Southeast Asia, turmeric is also used as a component in religious ceremonies. Turmeric is also referred to as “Indian Saffron” due to its bright yellow colour. Modern medicine has become to realise its significance as discussed by around three thousand publications dealing with turmeric in last 25 years. [4]
Turmeric is used as a blood purifier, anti-parasitic for many skin diseases, as well as used for healing wounds. A common household remedy for treating the common cold, known to almost every household in India, is a glass of warm ‘Haldi Doodh’ or ‘Turmeric Milk’.
In the early 90s, India fought and won a patent battle against two US-based scientists who had discovered the wound-healing qualities of turmeric. We shall discuss the famous ‘Turmeric Patent Case’ as below:
Case of the Turmeric Patent (1997, USPTO)
In 1995, the University of Mississippi Medical Centre was granted a US Patent on use of turmeric for its wound healing property. The claim covered a method of promoting healing of a wound by administering turmeric to a patient afflicted with the wound. This patent also granted them the exhaustive right to sell and distribute turmeric worldwide. The question arose whether ‘Use of Turmeric in Wound Healing’ developed by the American researchers constituted prior art or not? According to the Indian Patent Act, 1970, an invention is: “a new product or process that involving an inventive step and capable of industrial application”… “Novelty is a requirement for a patent claim to be patentable that means an invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art”[5].
Since the subject matter of the patent application, i.e., ‘Use of Turmeric in Wound Healing’ had already been published in ancient Indian texts, and turmeric preparations had been in use in India to treat wounds since ancient times, the purported developments by the American researchers had no novelty in invention.
The Council of Scientific and Industrial Research (CSIR) of India in 1996, filed an application for re-examination against the patent which was given to the University, citing enough documentary evidence of traditional knowledge, including an ancient Sanskrit text and a paper published in the Journal of the Indian Medical Association in 1953. The Council of Scientific & Industrial Research (CSIR) argued that turmeric was known in India and had been used for thousands of years for healing wounds alongside use as a food ingredient, and argued that its medicinal use was not a novel invention. Their claim was supported by 32 references written in different languages such as ancient Sanskrit, Urdu and Hindi texts, a paper published in 1953 in the Journal of the Indian Medical Association. The USPTO, after ascertaining that there was indeed no novelty in their purported invention, revoked the patent granted to the University of Mississippi Medical Centre in 1997, and acknowledged that use of turmeric and its medicinal properties had been known to India for thousands of years [6]. In this particular case of grant of a foreign patent, the traditional knowledge indigenous to India was thankfully rescued from foreign monopoly.
How to Protection Traditional Knowledge in India?
Through the WIPO IGC on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, two types of protection are being sought to protect Traditional Knowledge/Traditional Cultural Expressions or Genetic Resources [7]:
- Defensive Protection – The purpose of Defensive Protection is to prevent outsiders from acquiring IPR over traditional knowledge. India has developed a public database of traditional medicine that patent examiners can utilise as evidence of previous art when assessing patent applications. This was in response to a well-known case in which the US Patent and Trademark Office granted a patent (which was later cancelled) for the use of turmeric to treat wounds, a property well-known to traditional Indian communities and documented in ancient Sanskrit writings. Defensive strategies might also be used to safeguard sacred cultural manifestations, such as sacred symbols or words from being registered a trademark.
- Positive protection – Positive protection is the granting of rights that empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation. Traditional knowledge can be protected in some ways under the pre-existing intellectual property system, and a number of countries have enacted legislation to safeguard it. Any unique protection provided by national law, on the other hand, may not be applicable to other countries.
Traditional Knowledge Digital Library (TKDL) as a Global IP Watch System
Global IP-watch monitoring systems have an important role to play in enabling the identification of published applications which may be based on traditional knowledge, regarding which third parties – in accordance with the IP law of the country concerned – may file observations.
The Traditional Knowledge Digital Library (TKDL) is a revolutionary initiative taken by the Government of India in 2008. It arose primarily as a result of India’s efforts to have the USPTO’s patents on the wound-healing properties of turmeric and the European Patent Office’s patent on the antifungal properties of neem. [8]
The Traditional Knowledge Digital Library (TKDL) project is a collaborative efforts between the Council of Scientific and Industrial Research (CSIR), the Ministry of Science and Technology and the Ministry of AYUSH to collect and preserve traditional knowledge relating to herbal medicines and traditional medical and therapeutic practices (such as Ayurveda, Siddha, Yoga and Unani) that already have existed in India in local/ancient languages such as Sanskrit, Urdu, Tamil, Hindi, Arabic and other languages, at the international level. As of now, in TKDL database, more than 3.6 Lakhs practices/formulations has been transcribed. Traditional Knowledge Digital Library (TKDL) has also established worldwide guidelines and standards for the creation of Traditional Knowledge (TK) database thereon. This was agreed by WIPO’s Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore at its fifth session in 2001.
Advantages of TKDL as a Global IP watch systems –
- TKDL has bridged the language barrier and provided access to a digitized repository of Indian traditional knowledge to parties around the world, thanks to the content being translated and readily available in five major international languages, namely English, German, French, Japanese and Spanish;
- TKDL has enabled the submission of third-party observations (TPOs) which has proven to be the only cost-effective way of preventing misappropriation of Traditional Knowledge (TK) at the pre-grant stage;
- TKDL database has enabled the submission of TPOs that have resulted in the successful opposition of hundreds of patent applications filed around the world;
- TKDL has an integrated global biopiracy watch system that allows monitoring of patent applications related to Indian medicinal systems, thereby enabling prompt corrective action at almost zero direct cost [9].
Conclusion
The international community has come to realize and recognize the need to protect the traditional knowledge accumulated over generations in non-industrial communities and civilizations in order to stop unauthorized use and misappropriation of such knowledge, as it forms the cornerstone of much of cultural identities worldwide. The importance of successful documentation, digitization and accessibility to indigenous Traditional Knowledge (TK), such as through India’s TKDL, has become even more crucial with time. India is the only country in the world to have set up an institutional mechanism-the TKDL- to protect our indigenous Traditional Knowledge after the fight to have the foreign patent granted for wound healing properties of turmeric revoked by the USPTO. In recognition of the pressing need, the World Intellectual Property Organization (WIPO) has discussed legal instruments to curb bio-piracy and misappropriation of traditional knowledge by way of Defensive and Positive Protections, however much needs to be done to implement these measures in most countries and it is critical that protection of traditional knowledge does not get overshadowed by more urgent considerations.
References
[1] http://nbaindia.org/undp/
[2] https://www.wipo.int/pressroom/en/briefs/tk_ip.html
[3] https://www.nccih.nih.gov/health/turmeric
[4]https://pubmed.ncbi.nlm.nih.gov/22593922/#:~:text=Turmeric%20is%20a%20plant%20that,a%20component%20in%20religious%20ceremonies
[5] Section 2(j) defines the word “Invention” in the Indian Patents Act, 1970.
[6] http://www.scielo.org.za/pdf/pelj/v13n4/v13n4a05.pdf
[7] https://www.wipo.int/pressroom/en/briefs/tk_ip.html
[8] http://www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng
[9] https://www.wipo.int/wipo_magazine/en/2011/03/article_0002.html