This article has been written by Ms. Prachi kumari of Alliance School of Law, a student of 2nd year
Abstract
As much of the world’s biodiversity has been conserved and maintained by indigenous people, the preservation of traditional knowledge is vital for the conservation and sustainable development of the environment. For the preservation and conservation of genetic resources and other bio-resources, their awareness is essential. In many other nations, traditional knowledge of Indian products is a more significant commodity than any other commodities. This is because India is a place where lots and lots of valuable resources are found and most of the items are the result of conventional historical knowledge. Traditional knowledge of various products in India should be protected from misuse by different countries and India needs to further update in the field of patenting Indian traditional knowledge in order to be safeguarded against this reality. In this article various techniques for securing TK by constructive and protective defence which have been implemented are discussed. The Council for Scientific and Industrial Research (Government of India) has made an initiative to record TK in the TKDL (Traditional Information Digital Library) to secure TK which has now proved to be a boon in protection of traditional knowledge. Intellectual property rights (IPR) are used by bio pirates as a weapon to steal conventional information and misuse biological resources and this occurs because of certain inadequacies in current IPR system. This paper concludes with the points, where some sui-generis mechanism needs to be incorporated into the current IPR system.
Content
Traditional knowledge (TK) is integral to the identity of most local communities. It is a key constituent of a community’s social and physical environment and, as such, its preservation is of paramount importance. Attempts to exploit TK for industrial or commercial benefit can lead to its misappropriation and can prejudice the interests of its rightful custodians. In the face of such risks, there is a need to develop ways and means to protect and nurture TK for sustainable development in line with the interests of TK holders. The preservation, protection and promotion of the TK-based innovations and practices of local communities are particularly important for developing countries. Their rich endowment of TK and biodiversity plays a critical role in their health care, food security, culture, religion, identity, environment, trade and development. Yet, this valuable asset is under threat in many parts of the world.
There are concerns that this knowledge is being used and patented by third parties without the prior informed consent of TK holders and that few, if any, of the derived benefits are shared with the communities in which this knowledge originated and exists. Such concerns have pushed TK to the forefront of the international agenda, triggering lively debate about ways to preserve, protect, further develop and sustainably use TK. Documenting and digitizing TK-related information in the form of a TKDL is proving to be an effective means of preserving TK and of preventing its misappropriation by third parties. India is a pioneer in this field.
India’s TKDL, a collaborative project between the Council of Scientific and Industrial Research (CSIR), and the Department of AYUSH3, is a home-grown effort to ensure patent offices around the world do not grant patents for applications founded on India’s wealth of age-old TK. The idea to establish a TKDL came to the fore amid India’s efforts to revoke the patent granted by the United States Patent and Trademark Office (USPTO) on the wound healing properties of turmeric, and the patent granted by the European Patent Office (EPO) on the antifungal properties of need. These endeavours, while successful, proved extremely costly and time-consuming.
Around the time the TKDL was established in 2001, the TKDL expert group estimated that, annually, some 2,000 patents relating to Indian medicinal systems were being erroneously granted by patent offices around the world.
For a patent to be granted, an applicant must satisfy certain criteria as defined by national patent law, in particular, an applicant must prove that a claimed invention is novel and not previously known. Why then had patents been granted for so many applications relating to Indian medicinal systems? When patent examiners assessed these applications for patentability, the claimed inventions did not feature in the prior art searches carried out. They were, therefore, deemed patentable. At that time, however, much of India’s traditional medicinal knowledge only existed in Sanskrit, Hindi, Arabic, Urdu and Tamil. These languages were neither accessible to nor understood by patent examiners working in the major patent offices to which the applications had been submitted.
The fact that so many patents had been wrongfully granted in the U.S. and Europe caused a great deal of national distress. The people of India felt that knowledge belonging to India was wrongfully being taken away from them. On top of this, these “wrong” patents conferred exclusive rights to exploit the technology in the country in which patent protection was granted. This posed a very real economic threat to Indian producers and to their freedom to operate in foreign markets.
Reference
https://www.wipo.int/wipo_magazine/en/2011/03/article_0002.html
https://www.sciencedirect.com/science/article/abs/pii/S0172219010000323
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1981642