India: Traditional Knowledge as Prior Art

Last Updated: 1 February 2006
Article by Manisha Singh

Traditional Knowledge of a community is in complete synchronization with their way of life. It is a dynamic entity constantly changing and evolving with generations and time. From time immemorial the members of the community in their everyday life used this knowledge base without giving any thought about the economic and commercial value of these but with the trade boundaries giving way to globalization & liberalization, cash rich multinationals have found a new commodity in the genetic resources of the developing and least developed nations. These genetic resources through use and supported by lifestyle, culture and society becomes the base of the traditional knowledge which is practiced, developed, transmitted and sustained by the communities.

Categories of traditional knowledge include agricultural knowledge, scientific knowledge and technical know-how, ecological knowledge, medicines and remedies and folklore in the form of artworks, music and dance. The legal framework within which traditional knowledge can be protected is a matter of investigation. Patents would require satisfaction of the criteria of novelty, non-obviousness and utility. Trademark Law and Copyright Law would require establishment of original symbols or marks and explicit expression of ideas from community knowledge base. Trade Secrets could be another legal instrument but would require mechanisms within the community working to ensure confidentiality.

Whatever may be the legal framework to protect traditional knowledge, its documentation in Databases is necessary to counter the claims in respect of the criteria of novelty. This documented knowledge is considered as prior art in the present day IPR framework. In India the documentation of traditional knowledge is in practice and a database has been developed in the form of tradition knowledge digital library.

This documentation of traditional knowledge is necessary for authentic and systemic prior art so that patent examiners in any country can refer to them in their regular literature search while establishing teachings from prior art and avoid erroneous issue of patents especially those based on or linked to traditional knowledge.

Presently India is not sharing its database of traditional knowledge, TDKL (traditional knowledge digital library) with patent offices in US and EU due to an objection raised by the MoHRD that the existing policy only allows access to domestic patent offices and giving access to other countries will require an approval from the cabinet. The objection is regarding confusion between patent and copyright. MoHRD contention is that the digital library contains several translations of ancient scriptures regarding the use of medicinal plants, which are covered by copyright and not patents.

Due to this nondisclosure of the prior art of traditional knowledge, as documented in the traditional knowledge digital library, to foreign patent offices almost 18,000 patents based on Indian medicinal plants have been granted in the last two to three years and this will now lead to lengthy and expensive legal action to fight against the already granted patents. This defeats the very purpose for which the digital library on traditional knowledge was created at huge costs and strenuous work of going through ancient literature.

Not learning from the past, that India took almost 10 years of a costly legal battle to get the patent on neem-based products quashed and leaving room for plunder of our traditional knowledge is indefensible.

© Lex Orbis 2006

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