INTRODUCTION
“vidyā dadāti vinayaṁ vinayād yāti pātratām|
pātratvāddhanamāpnoti dhanāddharmaṁ tataḥ sukham”
The above-written Sanskrit shlok means knowledge gives humility, from humility, one attains character; from character, one acquires wealth; from wealth, good deeds (righteousness) follow, and then happiness. Ancestors of different communities worldwide have passed down their trade secrets, skills, and wisdom to their offspring from time to time. Every generation has evolved and kept the essence of that very heritage passed on to them with utmost sincerity. These skills and secrets are nothing but traditional knowledge. It could be termed local knowledge or folk knowledge[1]. Using and practising traditional knowledge keeps us rooted in our ascendant. India is a nucleus of traditional knowledge. Having a rich culture and traditional background in various spheres it is recognized internationally. In a globalized world, people around the world use it in developing their products and claim a monopoly over the same. It is essential to protect the very essence of the base of these developments i.e. our traditional knowledge. It not only represents our cultural heritage but is a pride and the belief system of our forefathers. It is crucial to protect traditional knowledge from any danger. Now, this is where patents come into the picture. It helps in protecting the right over this traditional knowledge. Patent laws in India have considerably evolved. Patent Act, 1970[2] governs the patent law in India. There are many other steps taken by the Indian Government in respect of this. The Traditional Knowledge Digital Library (TKDL) is one of the pioneering initiatives of India, under the collaboration of the Council of Scientific and Industrial Research and the Ministry of Ayush[3]. It helps in protecting the traditional knowledge at Patent Offices worldwide.
India has traditional ecological knowledge regarding the medicinal properties of different herbs, plants, and spices. There have been many instances where there have been fights over the patent rights. Here there is a detailed analysis of a couple of these plants and herbs Turmeric, Neem, Basmati, and Golden Rice, and their patent journey.
TRADITIONAL KNOWLEDGE AND PATENTS
“Traditional knowledge” does not have any universal or one-defined definition. Generally, it is termed as knowledge passed from generation to generation about the skills, trade secrets, and processes of doing and making certain things[4]. It could be related to some distinct communities or families. In the same way, India has mastery in several domains such as science, medicine, technology, art, agriculture, and last but not least yoga. With this amount of intelligence that India possesses comes the responsibility to guard it from any illegitimate use of it. Traditional knowledge as defined by its nature could not be associated with a single individual nor could be patented in someone’s favour. Moreover, traditional knowledge had been passed verbally in most of the scenarios and there had been very less number of cases where it had no written documentation proof, if any. It raises challenges and hurdles for securing a shield for traditional knowledge. Intellectual property rights providing a framework for trademarks, patents, designs, Geographical Indication (GI), trade secrets or copyrights find it onerous to provide an umbrella of its protection to the traditional knowledge. Nevertheless, there are various other enactments and initiatives taken by the Indian Government to hold on to traditional knowledge.
Traditional knowledge concerning Basmati, Turmeric, Neem, and Golden Rice finds its significance in TKDL. Organizations like the World Intellectual Property Organization (WIPO), European Patent Organization (EPO), Indian Patent Office, and so on provide a legal framework and understanding for intellectual property. There have been a couple of instances where biopiracy has occurred related to the traditional knowledge of India. Biopiracy in simple terms means illegitimate and wrong use of traditional knowledge and claiming monopoly over it[5]. India’s traditional knowledge finds most of its significance in the health sector. Traditional knowledge has proved to be a boon for the health sector as it helped in the development of n number and kinds of medicines for awful diseases. Ayurveda finds its very roots in traditional knowledge. Many countries acknowledge the magic of Ayurveda. Most of it comprises herbs and plants and their natural uses. Neem and Turmeric have many medicinal properties. Basmati and Golden Rice have remarkable properties. There have been quite diverse cases related to the same.
BASMATI
The popular India – US Basmati Rice Dispute filed on 8th July of 1994, remarks an intellectual insight into India’s triumph in the fight over the protection of GI of Basmati Rice[6]. US-based company RiceTech Inc. had been granted a patent by the US Patent Office for the aromatic rice line developed by it and naming it “Basmati”. India being the major exporter of Basmati rice filed an objection over the patent granted. Basmati rice has been majorly consumed by the southeast region of the country of India. It grows at the foothills of the Himalayas, hence acquiring the GI tag. Due to the patent granted, India being the major exporter of basmati rice affected its trade. The appeal was filed by India for violating the GI Act under the TRIPS Agreement. The company’s 20 claims of its rice to be of superior quality, high yield, and years of development, etc. were proved to be futile. It had to take back 15 claims out of 20. Along with it, the company revoked its claim over “Basmati”[7].
NEEM
In the early 1990s, Florida-based W.R. Grace & Co. conducted research on the Neem tree and altered the active ingredients to create storage stable version of the extract for pesticides. In June 1992, the US Patent Office (USPO) granted a patent to the company for its discovery. In March 1994, the Environmental Protection Agency allowed the use of solutions on food crops. Activists in India were averse to the patent granted and called it illegal. They contended that India though not have any published documentary shreds of evidence for the usage of Neem, was way forward in its extracts discovery. USPO simply failed to recognize India’s knowledge. In September 1995, Activists along with the farmers filed a petition in USPO challenging the patent on grounds of novelty and immorality[8].
TURMERIC
In 1995, USPO granted a patent to the 2 Indian American Scientists for the use of turmeric in wound healing. It was challenged by the Council of Scientific & Industrial Research (CSIR) for re-examination on grounds of the prior art and claimed that turmeric has been used in India for healing purposes for many ages. India supported its claim by presenting documents in Sanskrit, Urdu, and Hindi containing information about the properties of turmeric in healing practices. USPO revoked the patent granted after a year-long battle on the grounds of prior art and obviousness[9].
GOLDEN RICE
In the 1990s, genetically engineered yellow-coloured rice was rich in Vitamin A and patented by Syngenta & International Rice Research Institute. For the last 2 decades, there has been no production or distribution of Golden Rice. Periodically Novartis (MNC) and one company from Japan applied for a patent on genes used to construct Golden Rice. Now these companies claim basic patent rights assuring that they will allow licensing royalty-free to the poor countries on humanitarian grounds and yet no one is ready to back down from the patent fight. Golden Rice like an Asian staple is reduced merely to the intellectual property in the battle of these companies[10].
ANALYSIS
Traditional Knowledge is representative of a country’s history. It is essential to pay more attention to protecting traditional knowledge from any illegal harm. Herbs like Neem, Turmeric, Basmati, and Golden Rice are kinds of plants and herbs that could be used for medicinal treatment. By shielding it with a shield of patent rights, traditional knowledge could be protected from unauthorized usage.
CONCLUSION
Traditional knowledge is an asset and pride for the respective communities. It’s an heirloom passed from generation to generation. In the modern world, technology transforms traditional knowledge into a more developed understanding. At the same time, it falls prey to its misuse and needs to be protected. The TKDL initiative of the government proves to be successful as the statistics show that over 324 patent applications have either been set aside, withdrawn, or amended based on the prior art evidence present in the TKDL Database. Latest statistics show that over 4.54 Lakh formulas and practices have been registered in its database[11]. No doubt, Patent fights for Basmati Rice, Neem, Turmeric, and Golden rice shown in the mentioned studies were a lot easier with the help of documented evidence. It depicts the need for registering and transcription the traditional knowledge for its defense.
Author(s) Name: Divanshi (Panjab University, Chandigarh)
References:
[1]Dr.Vishwas Kumar Chouhan, ‘Protection of Traditional Knowledge in India by Patent: Legal Aspect’ [2012] PL 3
[2] Patent Act 1970, s 6
[3] PIB Delhi, ‘Steps taken to protect ancient and traditional knowledge of indigenous medicinal systems’ (25 March 2022) <https://pib.gov.in/PressReleasePage.aspx?PRID=1809661> accessed 3 November 2023
[4] WIPO, ‘Traditional Knowledge’ <https://www.wipo.int/tk/en/tk/> accessed 3 November 2023
[5] Sonal Sodhani, ‘India: Traditional Knowledge And Patents’ (30 May 2019) <https://www.mondaq.com/india/patent/810280/traditional-knowledge-and-patents> accessed 3 November 2023
[6] Abhishekvb, ‘Case Study on Basamati Rice Patent Battle’ (30 January 2016) <https://www.slideshare.net/Abhishekvb/case-study-on-basamati-rice-patent-battle> accessed 3 November 2023
[7]Hetvi Trivedi, ‘Protecting Traditional Knowledge – the India story till date’ (SCC blog,4 April 2018) <https://www.scconline.com/blog/post/2018/04/23/protecting-traditional-knowledge-the-india-story-till-date/amp/> accessed 3 November 2023
[8] Emily Marden, ‘The Neem Tree Patent: International Conflict over the Commodification of Life’ [1999] PL 283
[9] Anusree Bhowmick, Smaranika Deb Roy and Mitu De, ‘VIEW ARTICLE
A BRIEF REVIEW ON THE TURMERIC PATENT CASE WITH ITS IMPLICATIONS ON THE DOCUMENTATION ON THE DOCUMENTATION OF TRADITIONAL KNOWLEDGE’ [2021] PL 85
[10] Team of Biswajit Sarkar, ‘India: Traditional Knowledge and Patents in Light of Basmati Rice, Neem, Turmeric and Golden Rice’ <https://www.hg.org/legal-articles/india-traditional-knowledge-and-patents-in-light-of-basmati-rice-neem-turmeric-and-golden-rice-57383> accessed 3 November 2023
[11] tkdl, ‘About TKDL’<https://www.tkdl.res.in/tkdl/langdefault/common/Abouttkdl.asp>accessed 3 November 2023
