Domestic and International laws prohibit patenting of traditional knowledge of any local community. However, the traditional knowledge, such as unique plants and their use is being usurped by unscrupulous players by patenting them in different countries. Only way to stall such moves is by providing prior art evidences proving that the knowledge was already available and practiced. Documentation of old references/books, therefore plays an important role in protecting the traditional knowledge. The challenge exists with protecting the undocumented or the traditional knowledge available in local/ancient scripts. In some cases, the traditional knowledge are also available in local stories, legends, folklore, rituals and songs, which are not property documented.
Importance of documentation can be appreciated by the fate of a patent application number CA2454171, filed by a US multinational firm, Metaproteomics LIc, at the Canada Intellectual Property Office. The application was titled “Curcuminoid compositions exhibiting synergistic inhibition of the expression and/ or activity of Cyclooxygenase-2”. The priority date of the application no CA2454171 was 17-Jul-2001 that was published on 30-Jan-2003. It claimed the usefulness of turmeric, apple, basil, kalamegha and licorice for the treatment of inflammation, psoriasis, gastritis and as anti-inflammatory to be novel. The Traditional Knowledge Digital Library (TKDL), a unit of Council of Scientific & Industrial Research (CSIR), submitted prior art evidences in the form of references in books from 18th century to the 20th century citing evidences that turmeric, apple, basil, kalamegha and licorice have been used alone or in combination with a few other ingredients for the treatment of inflammation, psoriasis, gastritis and as anti-inflammatory in the Indian systems of medicine. The books that were used by TKDL for citing prior art of evidences includes Khazaain-al-Advia, Muheet-e-Azam, Vaidyamanorama, RasayogaSagara, Rajanighantauh, Bhavaprakasa, Siddhabhesajamanimala and Ilaaj-al-Amraaz.
By presenting these prior art references, India was successfully able to foil the firm’s bid to patent the medicinal use of turmeric.Based on TKDL evidences filed for the application no. CA2454171, CIPO declared the application as ‘Dead’ on 28-Sep-2012.
The Traditional Knowledge Digital Library has been playing a crucial role in protecting traditional Indian knowledge. The chronology to build up of the TKDL and their related activities is as under:
In Nov 2002, internationally recognized specifications and standards for setting up of Traditional Knowledge (TK) databases and registries based on TKDL specifications was formed that included TK experts from China, Philippines, India.
Access Policy Issue Committee (APIC) was constitution in August 2002, their responsibilities included:
- Frame policies on accessing TKDL database
- Decide on matters relating to dissemination of TKDL
- Meet defensive and positive objectives of TKDL
In March 2003, the data abstraction work on 36,000 Ayurveda formulations for creating TKDL in five languages, i.e. English, German, Spanish, French and Japanese was completed. It was followed by a demo CD containing a sample of 500 formulations in October 2003.
A meeting held in June 2004 with the Health and Family Welfare Minister on providing access to TKDL database to European Patent Office (EPO). EPO requested access to TKDL in July 2005.
An approval on access to TKDL database was granted to International Patent Offices (IPOs) by Cabinet Committee on Economic Affairs in June 2006.The Access Agreement was sent to EPO in July 2006.
The US Patent and Trademark Office (USPTO) requested for access to TKDL database in December 2006. USPTO agreed in principle to TKDL Access Agreement in May 2009.
TKDL Access Agreement concluded with Canadian Intellectual Property Office (CIPO) in Sep 2010.
An international conference was held in Mar 2011 on ‘Utilization of the Traditional Knowledge Digital Library (TKDL) as a Model for the Protection of Traditional Knowledge’ that was organised by World Intellectual Property Organization (WIPO) and Council of Scientific & Industrial Research (CSIR).
First Amending Agreement to TKDL Access Agreement with EPO concluded in Jul 2012 and with CIPO in Aug 2012.
Similar to India’s TKDL, several other countries are creating libraries of their traditional knowledge, which is being actively used by patent authorities while deciding the patentability of new applications.
As can be observed from the activities of different organization working to protect the traditional knowledge from being patented, the primary issue lies with undocumented traditional knowledge or the documents existing in local languages. Government institutions interested to protect the traditional knowledge of the local communities need to create a proper team for proactively documenting the undocumented practices/traditional knowledge. They should interact with local communities including tribal who poses huge traditional knowledge, collect the evidence of early uses and document it as per the specified format. The instructions, such as Archaeological Survey of India can be used effectively to validate the early usage or to establish the claims of traditional knowledge.
About the Author: Mr Rakesh Kumar Gupta, Senior Patent Associate at Khurana & Khurana, Advocates and IP Attorneys and can be reached at: Rakesh@khuranaandkhurana.com