India: How India Is Safeguarding Its Traditional Knowledge From Monopolisation?

Since 2009 based on its rich past of traditional knowledge, India has successfully challenged the validity of 36 Patents Applications at Europe.1 It was not long back that India came to know about few patents which were granted in foreign countries which were majorly based on India's Traditional knowledge. In wake of the same, India created Traditional Knowledge Digital Library [TKDL] a first of its kind effort to protect traditional knowledge from misappropriation. Following is an exposition on India's effort in the creation of Traditional knowledge database and its achievements.

WHAT IS TRADITIONAL KNOWLEDGE?

Traditional knowledge refers to the perennial practices that have been indigenously developed, evolved, preserved and utilized over ages by local communities. This knowledge extends over a variety of realms such as medicines and agriculture, and is disseminated through stories and rituals or has been percolated through generations by word of mouth. They are basically the intellectual activity that has evolved across centuries at the community level and thus is collective knowledge of the entire community. A part of this has been described in ancient classical and other literature codified in ancient scriptures in native languages but most of the document is not documented.

NEED OF THE DATABASE FOR TRADITIONAL KNOWLEDGE

Traditional knowledge may have high commercial value in particular medicinal effect/ property which might be effective cure for an ailment. Hence, making it a good reason for corporations and individuals to go for patent protection of such knowledge based inventions just to gain monopoly; here it is pertinent to mention that the something that is part of public knowledge in one region of the world might be totally unknown to the other regions. In the past there are cases where such knowledge is monopolized and granted patent; such as patent for wound healing properties of turmeric in 1997 at US patent trademark office (USPTO), antifungal properties of Neem at European patent office (EPO) in 2005 are two such misappropriations of India's traditional knowledge. And it took 10 years to revoke these frivolous patents apart from the huge money that was spent in the opposition proceedings. On an average, it takes five to seven years and expense between 0.2-0.6 million US dollars to oppose a granted patent2. For an invention to be protected under Patents it has to be novel (new) apart from non obviousness and commercial viability. Patent examiners across the globe check the patentability under these criteria. As we know traditional knowledge as such is not novel but the lack of accessibility of such information in international languages result in granting of patents which greatly hamper the rights of the local communities. So there was a greater need to provide accessibility of traditional knowledge to patent offices across the globe in International languages. Moreover there is a need to establish a common pool of traditional knowledge database of respective regions of the world so as to prevent the grant of patents based on any such traditional knowledge – which in fact shall be free for all to use and exploit.

CREATION OF TRADITIONAL KNOWLEDGE DIGITAL LIBRARY

In order to safeguard the Traditional Knowledge wealth from misappropriation, in 1999,the Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy-(AYUSH), erstwhile Department of Indian System of Medicine and Homoeopathy (ISM&H) constituted an inter-disciplinary Task Force, for creating a Traditional Knowledge Digital Library (TKDL) a database in which traditional medicinal information is digitized with accessibility in five major international languages to patent offices across the globe so that examiner may conduct a patent search to check the novelty of the invention. The project TKDL was initiated in the year 2001.

TKDL is a collaborative project between Council of Scientific and Industrial Research (CSIR), Ministry of Science and Technology and Department of AYUSH, Ministry of Health and Family Welfare, and is being implemented at CSIR. An inter-disciplinary team of Traditional Medicine (Ayurveda, Unani, Siddha and Yoga) experts, patent examiners, IT experts, scientists and technical officers are involved in creation of TKDL for Indian Systems of Medicine. It is worth mentioning here that India is the first and the only country in the world to have setup an institutional mechanism TKDL to protect its traditional knowledge in order to prevent the grant of erroneous patents3.

TKDL has converted and structured ancient texts into 34 million A4-sized pages and translated them into English, French, German, Japanese and Spanish the major international languages. There are total 150 books that are being transcribed at TKDL so far of which 75 are ayurveda , 10 are Unani, 50 are Siddha books and the,-rest 15 Books are based on Yoga which cumulatively result in 2,37,939 Transcription of Traditional medicine formulation as per the information furnished on the official website.

TKDL provides information on traditional knowledge existing in the country, in languages and format understandable by patent examiners at International Patent Offices (IPOs), so as to prevent the grant of erroneous patents. TKDL thus, acts as a bridge between the traditional knowledge information existing in local languages such as Sanskrit, Hindi, Arabic, Urdu, Tamil etc and the patent examiners at IPOs.

The project TKDL involves documentation of the traditional knowledge available in public domain in the form of existing literature related to Ayurveda, Unani, Siddha and Yoga, in digitized format in five international languages which are English, German, French, Japanese and Spanish. Traditional Knowledge Resource Classification (TKRC), an innovative structured classification system for the purpose of systematic arrangement, dissemination and retrieval has been evolved for about 25,000 subgroups against few subgroups that were available in earlier version of the International Patent Classification (IPC), related to medicinal plants, minerals, animal resources, effects and diseases, methods of preparations, mode of administration, etc.4

India has so far signed TKDL access agreement with European patent office (Feb 2009), US Patent & Trademark Office (Nov 2009), Canadian Intellectual Property Office (Sep 2010), German Patent office (Oct 2009), UK Patent & Trademark Office (Feb 2010), Intellectual Property Australia (January 2011) and Japan Patent office (April, 2011); Intellectual Property Office of New Zealand is about to join the league. Access to TKDL is available to all these patent offices but it is based on non disclosure agreements. That means contents of the TKDL may only be revealed to third parties for the purposes of citation. The Non Disclosure agreement was entered just to safeguard India's interests and defy any possible misuse.

HOW TKDL WORKS AND ITS ACHIEVEMENTS?

The TKDL is available to all patent offices that have signed a TKDL Access Agreement. Under such an agreement, patent examiners may use the TKDL for search and examination purposes. Accessibility-of entire database in leading international languages enables them to easily trawl the database to ascertain the novelty of the invention.

Third party submission is another efficient way in revoking of patents based on erroneous inventions. It could be inferred from the fact that from July 2009 TKDL team has identified 215 patent applications pertaining to Indian medicinal system and third party submissions in the form of TKDL evidence have been filed. In two such cases grant has been reversed, in one applicant has modified and in 33 other cases applicants intentionally withdrew the application It is expected that in the coming months some 179 cases that are currently in the balance will either be rejected by the EPO (European Patent Office) or withdrawn by the applicants themselves. A recent study by a TKDL expert team at the EPO shows a sharp decline (44%) in the number of patent applications filed concerning Indian medicinal systems, particularly in relation to medicinal plants5

Based on the information available at the TKDL website four patents have been successfully revoked at Canadian Intellectual Property Office from September 2010 that to with an average time of 20 weeks from the submission of evidence. Apart from this there is a long list of patent that have been revoked and grant of patent is hindered at USPTO and other various patent offices and in many cases applicants voluntarily withdrew their applications and granted patent. The TKDL has an integrated global biopiracy watch system that allows monitoring of patent applications related to Indian medicinal systems. It enables effective detection of attempts to misappropriate this knowledge by third parties filing applications with patent offices around the world. It means that immediate corrective action can be taken, and at zero direct cost, to prevent biopiracy. India is the only country to date to have put such a system in place.6

India's success in safeguarding its traditional knowledge by the creation of TKDL has already influenced many developing countries. Even WIPO (World Intellectual property Organization) has appreciated India's effort in protecting indigenous Traditional Knowledge. In the recent past India and WIPO partnered and organized a conference for protecting-Traditional_Knowledge which was attended by representatives from 35 countries across the globe.

Footnotes

1. www.tkdl.res.in

2. "Protection of Traditional Knowledge by Utilization of TKDL", published by Press Information Bureau Government of India Ministry of Science & Technology dated 21 March 2011.

3. www.tkdl.res.in

4. www.tkdl.res.in

5.  "Protection of Traditional Knowledge by Utilization of TKDL", published by Press Information Bureau Government of India Ministry of Science & Technology dated 21 March 2011.

6.  http://www.wipo.int/wipo_magazine/en/2011/03/article_0002.html  

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