THE BIO-PIRACY OF TRADITIONAL KNOWLEDGE WITH REFERENCE TO TURMERIC PATENTS CASE

 

                untitled

 Author: Slesha Sukriti (IX Sem)

Co-Author: Taruna Jakhar (IX Sem)

Seedling School of Law and Governance

Jaipur National University

 

Abstract

Traditional knowledge is the traditions and practices of certain regional, indigenous or local communities which are being practiced by them over a long period of time. The issues of generation, protection and exploitation of intellectual property (IP) are attracting a lot of attention globally. Intellectual Property owners around the world are struggling over protection of their rights over their properties. Over the past few years, the patent system has come under considerable criticism for its failure to prevent the misappropriation of traditional knowledge.

The paper has three purposes. The authors through this case study has emphasised upon the protection of Traditional Knowledge from Bio-Piracy. The case study firstly deals with the concept of Traditional Knowledge and its Importance along with a brief description on how they are misappropriated. It also analyses the procedure of Patent in the case of Traditional Knowledge in Indian context. Then Traditional knowledge on biodiversity from India has been particularly vulnerable to patent claims. The Indian government, different associations and NGOs have made several bio-piracy claims in recent years for protection of Indian Traditional Knowledge. One of them is the Landmark case of India v. US over the patent of Turmeric. The authors have also tried to put a focus upon The Turmeric Patent case.

Secondly, the case study has critically analysed the the Bio-piracy as an issue in protection of the Traditional Knowledge as according to many authors, Biopiracy has been heralded as the “patenting of biological resources with no respect…”[1] and has emphasised upon the Sui Generies, which is considered as a special form of protection regime for protection of Traditional Knowledge from Bio- Piracy. It has also dealt with different foreign laws dealing with Sui Generies.

And lastly, the authors have concluded the case study by recommending some other solutions, other than Sui Generies to deal with the Bio-piracy in the field of protection of Traditional Knowledge.

Introduction:

The traditional knowledge refers to that knowledge that the people have gained over the centuries. These refer to the practices and the innovations that have been developed by the people over the decades.[2] The local culture and the environment have been the major causes for the development of these practices. The World Intellectual Property Organization is one of the organizations which have specifically defined traditional knowledge. According to the definition which has been jotted down, the traditional knowledge includes all kinds of fields based on traditions whether scientific or artistic.[3] The traditional knowledge has its genesis from the traditions of the community from where it has evolved. Therefore there is a need to protect this traditional knowledge from the outsiders. The intellectual property rights are the only mode through which the owner of the traditional knowledge can be protected.

Traditional knowledge is of vital importance when it comes to its application in the field of medicine and agriculture. Therefore the exploitation of this knowledge by the individuals or the corporations is a major issue faced by the community from where it originated.[4] The problem arises when the inventions related to the traditional knowledge have been granted a patent without the novelty criteria being fulfilled if this knowledge is considered as the prior art. The prior art refers to the content which has been published and is available to the general public before the date on which the patent application is filed.[5]

Misappropriation Of Traditional Knowledge:

Western societies have not recognized the significant value of traditional knowledge; they consider it as knowledge in public domain which is available for exploitation to everybody.[6] They consider that traditional knowledge in combination with modern scientific knowledge is a solution to their current problems in diverse areas ranging from agriculture to health.[7] Sharing and exchanging biodiversity and knowledge related to it is a common practice among indigenous communities from time immemorial, this practice is also preached in modern societies even today. As mentioned in earlier paragraphs traditional knowledge is passed on to future generations and exchanged among communities orally and they are not documented, which makes it easy for the outsiders to violate and steal traditional knowledge and use it for personal commercial gain.

At various instances arguments have been placed by indigenous communities that public claims on their traditional knowledge without their consent which amounts to misappropriation of their cultural heritage and violates their fundamental, inalienable, and collective human rights. Culture and customs of indigenous people is developed due to their interaction with land and forests, yet their traditional knowledge is been exploited by multinational corporations at an alarming rate, without sharing profit with them. As a result these people are losing their land and habitat to industries, leaving them landless, jobless, foodless, and moreover cultureless.[8]

Patents And Traditional Knowledge:

Patent provides an incentive to the individuals by offering recognition for their creativity and material reward for their marketable invention; this encourages innovation and assures quality of human life.[9]  Patent law in India prescribes three conditions to be fulfilled novelty, non-obviousness and usefulness of the patentability of the object,  hence before the grant of the patent, a research is undertaken for the purpose of finding whether the subject matter of patent application forms a part of prior art. This is a part of the examination process which is undertaken when the patent application is filed. However, the only requirement associated with the content being considered as the prior art is that it should be properly documented. As the traditional knowledge is mostly transferred orally through the generations, the chances of it being in a documented form are less; this has caused traditional knowledge to be undervalued or marginalized. Therefore finding for the documented evidence of the same can be a pain taking task, hence due to the above mentioned reason; there are many patents that have been granted erroneously.

The individuals and the corporations therefore take advantage of these erroneous patents for the purpose of their commercial gains. Also they do not share the benefits arising from these patents with the people who are real originators of this knowledge. This has led to the exploitations of the rights of the originators of this traditional knowledge.[10]

With reference to the traditional knowledge aspect of the Intellectual Patents Rights, there have been instances where in the rights of the indigenous people have been protected. The most prominent among these examples is the turmeric case.

Turmeric Case:

In the renowned Turmeric Case[11], the traditional knowledge of the Indians was safeguarded. In this case, the United States Patent and Trademark Office, in the year 1995 granted to two expatriate Indians, a patent regarding the method of use turmeric as an antiseptic.[12] These two expatriate Indians belonged to the University of Mississippi Medical Center. The method involved administering turmeric on the wound of the patient who had been injured.  The Indian Council for Scientific and Industrial Research (CSIR) had objected to the same as there were evidences of existence of prior art. Turmeric has been used by the Indians as a home remedy for the quick healing of the wounds and also for the purpose of healing rashes. As the prior art has to be in documented form necessarily, the officials of CSIR therefore presented a Sanskrit text wherein it has been specifically written that turmeric has been used by the Indians since many years for medicinal purposes. The other evidence provided by them was the journal article published by the Indian Medical Association, in the year 1953 wherein the same text was mentioned. Therefore in this way they proved that the use of turmeric as an antiseptic is not new to the world and is not a new invention, but formed a part of the traditional knowledge of the Indians. The objection in this case was upheld and traditional knowledge of the Indians was protected.

Bio-Piracy An Issue Related To The Protection Of Traditional Knowledge:

Generally speaking bio piracy can be defined as misappropriation of traditional knowledge with intent to gain patent protection over that knowledge.[13] Delegation, intrusion, the bio prospecting rush, lack of appropriate legal system for protection of traditional knowledge, and clash of systems makes traditional knowledge highly vulnerable to bio piracy.[14] Traditional knowledge can be associated to biodiversity; it is an invariable and intangible resource of biodiversity. Traditional knowledge has the capabilities of deriving commercial profits by providing leads and clues which lead to developing practices and processes beneficial to mankind, these clues or leads save time, money, and investment in modern biotech and research industries, it can reasonably be said that benefits should be accrued to the originators or creators of this traditional knowledge generated by the use of their traditional knowledge.

Quite understandably, the indigenous communities are piqued to find that the genie has been taken out of the bottle and there are no wishes being granted to the people who have preserved it for so long. They allege that the Western pharmaceutical industry has, in many instances, not taken their consent, as facilitators, before going ahead with the commercial exploitation of the traditional knowledge. While South bloc countries wait for intellectual property laws to catch up on providing protection to traditional knowledge.[15] 

Bio piracy and patenting of indigenous knowledge or traditional knowledge is a double theft because first it allows theft of creativity and innovation, and secondly, the exclusive rights established by patents on stolen knowledge, steal the economic options of everyday of survival on the basis of our indigenous biodiversity and indigenous knowledge. Overtime, the patents can be used to create monopolies and make everyday products highly priced.[16]

Sui Generies System Of Protection:

Sui generis is a Latin term which meaning “of a special kind”. In intellectual property rights (IPRs), this term is referred to a special form of protection regime outside the framework which is known to the world. It can also be also considered as a regime especially created to meet a certain needs.[17] If we understand this concept with the help of an illustration, in the African context, this regime becomes necessary in protecting traditional knowledge (TK) and associated natural resources.[18] Traditional Knowledge does not straightaway lend itself to protection using the existing legal regimes because of the reason that it is premised on the concept of the community property ownership, whereas the existing forms of IPR regimes are based on the Western concept of property ownership. [19]

There are several instances which shows that the Sui generis system has been developed internationally providing safeguards to protect the Traditional Knowledge. In the international context, countries like Costa Rica, Philippines, Peru and Thailand have put sui generis regimes in place.

Starting with Costa Rica, it has a law on biodiversity under which traditional knowledge (TK) is recognized under its Article 82. This article states that:

“The State expressly recognizes and protects, under the common denomination of sui generis community intellectual rights, the knowledge, practices and innovations of indigenous peoples and local communities related to the use of components of biodiversity and associated knowledge. This right exists and is legally recognized by the mere existence of the cultural practice or knowledge related to genetic resources and bio-chemicals; it does not require prior declaration, explicit recognition nor official registration; therefore it can include practices which in future acquire such status. … no form of intellectual or industrial property rights protection … shall affect such historic practices”

Thereafter, the 1987 Constitution of the Philippines recognized traditional knowledge in its Section 17 article XIV, which provides that:

“The State shall recognize, respect and protect the rights of the indigenous cultural communities to preserve and develop their cultures, traditions and institutions”

Peru also developed a draft sui generis system in which the ownership, rights and appropriations of indigenous people to TK were recognized. The law provides for indigenous people to enter into “knowledge licensing contracts”. The law has also encapsulated the concept of “prior informed consent” for knowledge that is not in the public domain. The law created a fund for the development of indigenous people.[20] The communities are expected to receive 0.5% of sales from products developed based on TK.[21] However, the draft was widely resisted and is currently subject to further consultations. The local communities complained that the proposed law was not compatible with their understanding of resource rights.[22]

Thailand also developed the “Thai Traditional Medicinal Intelligence Act”. This Act recognizes three forms of protection.

  • The first one is the national formula that is given to the state. Formulae accorded “national” status are those deemed to be extremely crucial to the national public health system. The Minister for Public Health may declare any formula of Thai traditional medicine to be a national formula. Such declaration vests the rights in a national formula in the state. The commercial use of a national formula for research and development and production of drugs is subject to permission from the government. Violation of the Act is punishable through criminal sanctions.
  • The second one is the private formula. Third parties must seek permission from the private rights holder to a private formula. The rights over a private formula subsist throughout the life of the rights holder and extend up to 50 years after the person’s death. The aim of the Act is to ensure that the owner of TK is adequately compensated for their contribution.
  • The third category is a general formula that covers knowledge in the public domain and is free for all to use. The law allows free domestic use of all types of TK in small quantities. The Act also provides for conservation and sustainable use of medicinal plants. The Act created the “Thai Institute of Thai Traditional Medicine” and the “Thai Traditional Knowledge Developing Fund”. This law has spurred a lot of activity in the registration of traditional medicine. Thailand now gets substantial revenue from the use of TK.

Other Recommended Solution To The Issue Of Bio Piracy:

US Patent Law is a big source of Bio Piracy and the major reason for the same is that US Patent Law does not recognize use of an invention as a prior art which makes it possible for the American inventors to get patent protection for inventions which has only been used and not patented or documented.[23]

Another alternative is to add the clause in TRIPS agreement that the inventions which have been previously used, known to people at large, or described in any of the trade document, is not patentable.[24] The Convention on Biodiversity and TRIPS agreement should be implemented in consonance with each other.

A system of protection of traditional knowledge should be developed which ensures proprietary rights to the originators of the traditional knowledge, so that the market forces operate subject to the principles of fairness and equity.[25]

The current IPR system should be implemented, which enunciates that there should be benefit sharing between the commercial exploiters and originators of traditional knowledge. The applicant of patent for inventions that used traditional knowledge associated with genetic resources should be required to disclose the course or the origin of the source of the traditional knowledge in their patent applications.[26]

Conclusion:

There are a number of requirements that have to be fulfilled for the purpose of preservation of the knowledge as the prior art. The only way to protect the traditional knowledge is the effective documentation of the same because otherwise it would be a difficult task to assert and preserve the same. Therefore the defensive protection strategy needs to be adopted for the protection of the traditional knowledge. This method seeks to pre-empt the patent over the knowledge without procuring any intellectual property rights over the same. It is one of the most popular methods.

The using of protection under the conventional IPR has been a major issue. The requirements of novelty and non obvious nature of the knowledge to be patented, have to be satisfied. Therefore this makes the gaining of the commercial protection rights over the knowledge traditionally obtained, much inflexible. The other problem which is associated with the grant of the patent to the traditional knowledge is the unidentified inventor as there is no single inventor who invents this knowledge. The community as a whole is involved in the origination of the traditional knowledge. Therefore this leads to the conclusion that a community patent should be granted but unfortunately the IPR system does not provide for the same.

There have been various efforts that are being taken at the international level and the domestic level. For example the section 3a of the Indian Paten Act[27] talks about the traditional knowledge. This knowledge should be protected so that the people who deserve the benefits of the same can accrue these and there should be no monopolistic rights granted to a handful of people.

[1] www.wordlookup.net/bi/biopiracy.html

[2] Henrik Ardhede, Traditional Knowledge and the Patent System – Irreconcilable differences or a simple case of mistaken identity? (2006) (Unpublished Master Thesis, faculty of Law, University of Lund), available at : http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1555871&fileOId=1563800, accessed on 28.06.2016

[3] World Intellectual Property Organization, Intellectual Property and Traditional Knowledge, available at : http://www.wipo.int/edocs/pubdocs/en/tk/920/wipo_pub_920.pdf ( last visited on March 15, 2016)

[4]IPpro Services (India) P. Ltd., “Traditional Knowledge”, available at : http://www.ipproinc.com/admin/files/upload/0ec3e7fe64a0fffd09b03758b76aab1b.pdf (last visited on March 17, 2016)

[5] Ibid.

[6] Manisha Narula, Impact of Indian Patent Law on Traditional Knowledge, International Journal of Advanced Research in Management and Social Sciences, Vol. 3 | No. 6 | June 2014, p.46-58, ISSN: 2278-6236, available at: http://www.garph.co.uk/IJARMSS/June2014/6.pdf; accessed on 28.06.2016.

[7] Manuel Ruiz, The International Debate on Traditional Knowledge as Prior Art in the Patent System: Issues and Options For Developing Countries, Centre for International Environmental Law, October 2002, available at: http://ciel.org/Publications/PriorArt_ManuelRuiz_Oct02.pdf; accessed on 26.06.2016.

[8] Dr.Vishwas Kumar Chouhan, Protection of Traditional Knowledge in India by Patent: Legal Aspect, IOSR Journal of Humanities and Social Science (JHSS), Volume 3, Issue 1 (Sep-Oct. 2012), p. 35-42 , ISSN: 2279-0837, ISBN: 2279-0845, available at: http://iosrjournals.org/iosr-jhss/papers/Vol3-issue1/F0313542.pdf?id=5696; accessed on  26.06.2016.

[9] Webb & Co Patent Attornys, “Patents”, available at: http://www.wbpatents.com/frequently-asked-questions/patents, accessed on 27.06.2016

[10] Praveen Pani and Deepti Nigam, IPpro Services (India) Pvt. Ltd., Traditional Knowledge, available at :  http://www.ipproinc.com/admin/files/upload/0ec3e7fe64a0fffd09b03758b76aab1b.pdf., accessed on 29.06.2016

[11] Supra note 1 at 1.

[12] Ibid.

[13] A Andrzejewski, Traditional knowledge and patent protection: conflicting views on international patent standards, PER vol.13 n.4 Potchefstroom Jan. 2010, ISSN 1727-3781, available at: http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812010000400005#ntb; accessed on 29.06.2016.

[14] Supra note 7 at 2

[15] Hannah Scutt, Biopiracy: A Defence, Intellectual Property Dissertation LW 556 2004 – 2005, available at: https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjtrY-XgtDNAhUYTo8KHaB1AmwQFggdMAA&url=https%3A%2F%2Fwww.kent.ac.uk%2Flaw%2Fip%2Fresources%2Fip_dissertations%2F200405%2Fscutt.doc&usg=AFQjCNGQ5LCZDuXfB7wzsk4vV5nB3aXzxg&sig2=DgGB6XmeBOHTOBQaf4mUfA; accessed on 29.06.2016.

[16] Ibid

[17] Moni Wekesa, What is Sui Generis System of Intellectual Property Protection?, African Technology Policy Studies Network, Technopolicy Brief 13, ISBN: 9966-916-71-7,

available at: http://www.atpsnet.org/Files/technopolicy_brief_series_13.pdf; accessed on 28.06.2016.

[18] Ibid

[19] Ibid

[20] Ibid

[21] Ibid

[22] Ibid

[23] Johan Ragnar, Biopiracy, the CBD and TRIPS –The Prevention of Biopiracy, FACULTY OF LAW, University of Lund, Spring 2004,

available at: https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1561387&fileOId=1565619; accessed on 29.06.2016.

[24] Ibid

[25] Paul J. Heald, Allen Post Professor of Law, University of Georgia, Your Friend in the Rain Forest: An Essay on The Rhetoric of Bio-Piracy, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=285177; accessed on 29.06.2016

[26] Ibid

[27] Supra note 3 at 1.

 

 

 

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This Article was prepared or accomplished by Slesha Sukriti and  Taruna Jakhar in his personal capacity. The opinions expressed in this article are the author’s own and do not reflect the view of the LawOF.in

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