Traditional Knowledge and Patents

Introduction

India, a country with a rich cultural heritage, is a treasure trove of traditional knowledge (TK) passed down through generations. This knowledge encompasses many practices, innovations, and wisdom in agriculture, medicine, and biodiversity. 

In recent years, the intersection of traditional knowledge and modern intellectual property rights, particularly patents, has become a critical area of focus. This blog explores the significance of traditional knowledge in India, its patent challenges, and the legal framework designed to protect it.

Simplifying the Complex World of Patents

Here’s where things get a bit tricky. Patents are meant to protect new inventions and encourage innovation. But what happens when someone tries to patent something that’s been part of our traditional knowledge for centuries?

This isn’t just a hypothetical situation. We’ve seen cases where foreign companies have tried to patent turmeric for wound healing or neem as a pesticide. These are things our ancestors have known and used for ages!

What is Traditional Knowledge

Traditional knowledge refers to the long-standing practices, innovations, and wisdom indigenous and local communities developed. In India, this includes a vast array of information, such as Ayurvedic medicine, traditional agricultural practices, and the use of natural resources. This knowledge is often orally transmitted and deeply embedded in the communities’ cultural and spiritual lives.

Examples of Traditional Knowledge in India

1. Ayurveda: 

An ancient system of medicine that utilises herbs, diet, and lifestyle changes to promote health and well-being. Ayurvedic treatments and formulations have been used for thousands of years and include remedies for common ailments, preventive healthcare, and holistic wellness.

2. Yoga: 

Yoga is a physical, mental, and spiritual practice that originated in ancient India. It encompasses various practices, including postures (asanas), breath control (pranayama), and meditation, aimed at achieving a balance between mind, body, and spirit.

3. Indigenous Agricultural Practices: 

Techniques like crop rotation, mixed cropping, and the use of organic fertilisers. These practices are tailored to local ecological conditions and have been developed over centuries, ensuring sustainable and efficient use of natural resources.

4. Ethnomedicine: 

The traditional medical practices and beliefs of indigenous cultures, including medicinal plants and natural remedies. This knowledge is often passed down through generations and remains an integral part of healthcare in many rural communities.

5. Textile and Craft Techniques: 

Traditional weaving, dyeing, and embroidery techniques that reflect the cultural heritage and artistic skills of various Indian communities. These techniques often involve the use of natural dyes and sustainable materials.

Challenges in Patenting Traditional Knowledge

1. Documentation and Disclosure: 

Traditional knowledge is often not documented in a manner that meets patent application requirements. The oral transmission of this knowledge makes it difficult to prove prior art. For example, an ancient herbal remedy used by a community for centuries may not have been formally recorded, making it challenging to establish its prior existence.

2. Novelty and Inventiveness: 

Patents require knowledge to be novel and involve an inventive step. Traditional knowledge, being ancient and widely known within communities, often does not meet these criteria. A well-known conventional agricultural technique may not qualify for a patent because it lacks the requisite novelty.

3. Misappropriation and Biopiracy:

There have been instances where companies have patented traditional knowledge without proper community consent, leading to biopiracy. This unethical practice exploits the knowledge and resources of indigenous communities without providing fair compensation or recognition.

4. Economic and Social Impact:

The commercialisation of traditional knowledge through patents can have significant economic and social implications for indigenous communities. It is essential to ensure that these communities benefit from using their knowledge and that their rights are protected.

Legal Framework for Protecting Traditional Knowledge in India

Recognising the importance of safeguarding traditional knowledge, India has implemented several measures and legal frameworks.

Traditional Knowledge Digital Library (TKDL)

The TKDL is an initiative by the Government of India to document traditional knowledge in a digitized format. It provides information in five international languages and aims to prevent the misappropriation of this knowledge by providing patent examiners worldwide with access to the database. This ensures that patent applications involving Indian traditional knowledge are scrutinized more effectively.

The TKDL includes documented knowledge from Ayurveda, Unani, Siddha, and Yoga. By providing evidence of prior art, it has been instrumental in thwarting several attempts to patent traditional Indian knowledge.

Traditional Knowledge Resource Classification (TKRC)

The Traditional Knowledge Resource Classification (TKRC) system is an advanced classification framework for the Traditional Knowledge Digital Library (TKDL). The Indian traditional medicine system has been meticulously organised and categorised by TKRC into approximately 25,000 subgroups, encompassing Ayurveda, Unani, Siddha, and Yoga. 

This system has facilitated the inclusion of around 200 sub-groups under A61 K 36/00 as defined by the International Patent Classification. Previously, there were only a few sub-groups available under A61K 35/00, specifically for medicinal plants. This enhancement significantly improves the accuracy and efficiency of prior art searches and reviews for patent applications in traditional knowledge.

In 2011, the World Intellectual Property Organization (WIPO) held an International Conference in New Delhi in partnership with CSIR on the ‘Use of Virtual Knowledge Digital Library as a Model for the Security of Virtual Knowledge.’ As part of this initiative, WIPO organised an ‘International Study Visit to TKDL’ in collaboration with CSIR and DIPP (Ministry of Commerce and Industry) for 19 countries interested in replicating the TKDL model.

The TKDL has proven to be a powerful tool in defending against illegitimate claims over existing traditional knowledge and exclusive intellectual property rights. It highlights the constructive efforts made to preserve this valuable information for current and future generations. The goal is not to restrict the use of traditional knowledge but to ensure that incorrect patent rights are not granted due to a lack of access to prior art for patent examiners.

IPR Protection of Traditional Knowledge in India

Traditional knowledge requires effective protection in developing and underdeveloped countries. This includes recognising the rights of original traditional knowledge holders and preventing the unauthorised acquisition of these rights by third parties. Due to globalisation, international collaboration and cooperation are essential to protecting and nurturing traditional knowledge. Protective strategies must consider societal, national, regional, and international dimensions, giving due regard to the original knowledge holders. 

These mechanisms should address the economic aspects of protection, ensuring that it is affordable, understandable, and accessible to traditional knowledge holders. Traditional knowledge within the current IPR regime can be protected through two main approaches: Positive Protection and Defensive Protection. The distinction between these two types of protection is not rigid, and both strategies should be effectively employed to safeguard traditional knowledge.

The Biological Diversity Act, 2002

This act regulates the access to biological resources and associated knowledge to ensure that benefits arising from their use are shared fairly and equitably with the local communities. It aims to protect India’s biodiversity and associated traditional knowledge from exploitation. The act mandates obtaining prior informed consent from local communities before accessing their knowledge and resources.

The Protection of Plant Varieties and Farmers’ Rights Act, 2001

This act protects plant varieties and farmers’ rights to save, use, exchange, and sell their farm produce of protected varieties. It also ensures that traditional farming practices and knowledge are recognised and safeguarded. The act acknowledges farmers’ contributions to conserving plant varieties and aims to promote the conservation and sustainable use of agricultural biodiversity.

Copyrights and Traditional Knowledge

Copyright can protect Traditional Knowledge (TK) holders’ artistic expressions, particularly those of indigenous and migrant communities, from unauthorised use and exploitation. This includes a wide range of works such as:

Literary Works: 

Stories, legends, myths, customs, and poems.

Theoretical Works: 

Academic and scholarly contributions.

Pictorial Works: 

Paintings, drawings, and other visual arts.

Textile Works: 

Fabrics, clothing, textile compositions, tapestries, and carpets.

Musical Works: 

Songs, compositions, and other forms of music.

Three-Dimensional Works: 

Pottery, ceramics, paintings, wood and stone carvings, and various other objects.

Trade Secrets and Traditional Knowledge under Article 39 of the TRIPS Agreement

Article 39 of the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) recognises confidential knowledge as a subject matter of intellectual property rights (IPR). This provision safeguards unrevealed information through confidentiality and access agreements, which may include fees for accessing and using the knowledge. Three criteria must be met to qualify as a trade secret: the knowledge must have commercial value, it must not be publicly available, and reasonable efforts must be made to maintain its secrecy.

The protection of a trade secret is contingent upon its continued secrecy, aiming to legally prevent unauthorized exposure, acquisition, or use of the information in a manner contrary to fair business practices. Once the knowledge becomes public, trade secret protection is no longer applicable.

According to Srividhya Ragavan, trade secret law is likely the most effective form of security for traditional knowledge within the existing intellectual property regimes. For instance, trade secrets could impose a duty on a photographer not to sell or display copies of a photograph without the photographer’s consent. This form of intellectual property is ideal for securing unrevealed knowledge. 

The initial step towards protecting indigenous knowledge as trade secrets involves the holders recognising its value and understanding their rights and the long-term benefits of such protection. The secrecy regime’s incentives for monitoring the distribution and use of traditional knowledge should be communicated to the relevant sectors and communities. Traditional knowledge holders also retain the right to disclose the information.

Protecting traditional knowledge through trade secrets offers several advantages over other types of IPRs. The process is cheaper, quicker, and easier. The legislative requirements to prove a trade secret are flexible, allowing the protection of information that may not qualify for patent or copyright protection. Unauthorised use of the information can be prevented by suing for misappropriation of trade secrets.

Geographical Indications and Traditional Knowledge

Under the Indian Geographical Indications of Goods (Registration and Protection) Act, 1999, a “Geographical Indication” (GI) refers to an indication that identifies goods as originating from a specific territory, region, or locality, where a particular quality, reputation, or other characteristic of the goods is essentially attributable to their geographical origin. 

For manufactured goods, this connection requires that at least one of the production, processing, or preparation activities occur in the specified territory. Like trademarks, GIs attribute a recognised quality to products with a specific geographical location. Using a GI for products not originating from the designated area is prohibited. Examples of GIs include Darjeeling Tea, Kanchipuram Silk, Alphonso Mango, Nagpur Orange, Kolhapuri Chappal, Bikaneri Bhujia, Agra Petha, and Goa Feni.

Indigenous communities collectively hold traditional knowledge (TK), and GI is one of the most effective means of protecting this knowledge. The Geographical Indications of Goods Act rewards a group within a specific location. GI protection is valid for ten years but can be renewed indefinitely. Over time, production methods improve, enhancing product quality. The prestige and goodwill of products developed over years or decades are rewarded through GIs. GIs not only protect a product’s established manufacturing system but also accommodate its evolution.

Indigenous cultures have preserved and refined traditional methods, imparting unique features to their items. GIs recognise and appreciate these efforts, preventing others from exploiting this hard-earned prestige. The GI remains protected as long as the natural and cultural characteristics of the product are maintained at the appropriate place of cultivation. As collective rights, GI rights cannot be freely transferred from one individual to another.

Reasons to Protect Traditional Knowledge in Intellectual Property Rights (IPR)

Traditional knowledge (TK) is the accumulated wisdom, skills, and practices of indigenous peoples and local communities, developed over generations. Protecting TK within the framework of intellectual property rights (IPR) is crucial for various reasons, encompassing social justice, cultural heritage preservation, and economic equity. Here are five compelling reasons to protect traditional knowledge:

1. Equity

Traditional knowledge often contributes significantly to innovation, yet those who hold this knowledge are rarely recognised or compensated fairly. For instance, traditional farmers have improved plant genetic resources by cultivating and selecting the best crop varieties. Seed companies frequently capitalise on these improved varieties, securing benefits through mechanisms like Plant Breeders Rights, while traditional farmers receive little to no compensation. Protecting TK ensures that these communities can also benefit economically from their contributions to biodiversity and innovation.

2. Conservation of Biodiversity

Indigenous peoples’ innovations and traditions are deeply intertwined with their cultures and environments. By protecting traditional knowledge (TK), we can preserve this link between people and nature, thereby supporting biodiversity conservation, sustainable agriculture, and food security. Thus, the preservation of traditional knowledge is integral to the broader effort of maintaining ecological balance and cultural diversity.

3. Preservation of Traditional Practices

Protecting traditional knowledge helps maintain cultural identity and ensure the survival of indigenous communities. It provides a framework for preserving traditional practices and knowledge systems, which are essential for the cultural and self-identification of these communities. By safeguarding TK, we elevate its profile, making it more valuable and worthy of preservation, which extends beyond the protection offered by the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement and other multilateral instruments.

4. Prevention of Biopiracy

Biopiracy refers to the unauthorized and unfair appropriation of biological resources and traditional knowledge. Numerous patents have been issued on genetic resources derived from traditional knowledge, often without the consent of or compensation to the originating communities. Notable examples include the patenting of the healing properties of turmeric in the USA, which was successfully challenged by the Indian Council for Scientific and Industrial Research (CSIR). To prevent such misappropriation, it is essential to document TK, establish proof of origin for patent applications, and require prior informed consent from TK holders.

5. TK’s Significance in Development

Traditional knowledge has immense potential to contribute to modern society, offering valuable insights into health, agriculture, commerce, and economic growth. We can leverage this wealth of knowledge for sustainable development by integrating TK into contemporary decision-making processes. Protecting TK ensures that it is used equitably and its benefits are shared fairly with the communities that have nurtured it.

Case Studies

The Neem Patent Case

In the 1990s, a patent was granted in the United States for the antifungal properties of neem oil, a knowledge that has been part of Indian traditional practices for centuries. The patent was revoked after the Indian government and environmental groups provided evidence of prior use, highlighting the importance of documenting traditional knowledge. This case underscores the need for robust mechanisms to protect traditional knowledge from misappropriation.

The Turmeric Patent Case

Similarly, a patent granted in the United States for using turmeric in wound healing was revoked after Indian scientists proved that this knowledge had been part of traditional Indian medicine for thousands of years. The revocation of the patent was a significant victory in the fight against biopiracy and demonstrated the effectiveness of documenting and disseminating traditional knowledge.

The Way Forward

To bridge the gap between traditional knowledge and modern intellectual property systems, several steps can be taken:

1. Enhanced Documentation

We will continue to work to document traditional knowledge in accessible and searchable formats. This includes using digital technologies and databases to preserve and disseminate this knowledge.

2. Community Involvement

Ensure that the communities that are the custodians of traditional knowledge are involved in the process and benefit from its commercialisation. This can be achieved through community-based participatory research and benefit-sharing agreements.

3. International Cooperation

Strengthening international agreements and cooperation to protect traditional knowledge globally. This includes advocating for recognising traditional knowledge in international intellectual property frameworks and promoting ethical practices in bioprospecting.

4. Legal Reforms

Updating national and international legal frameworks to protect traditional knowledge better and prevent misappropriation. This may involve developing sui generis systems that recognise the unique nature of traditional knowledge.

5. Awareness and Education

Raising awareness about the value of traditional knowledge and the importance of its protection. Educational programs can help foster respect for indigenous cultures and promote the sustainable use of traditional knowledge.

Conclusion

Traditional knowledge is a vital part of India’s cultural heritage and offers valuable insights and innovations. While the modern patent system presents challenges in protecting this knowledge, initiatives like the TKDL and supportive legal frameworks are crucial steps in the right direction. By bridging ancient wisdom with modern intellectual property rights, we can ensure that traditional knowledge is preserved, respected, and utilised sustainably for future generations.

As we move forward, we must find ways to protect our traditional wisdom while also fostering innovation. After all, our traditional knowledge isn’t just about preserving the past – it could hold the key to solving many of our future challenges, from healthcare to environmental conservation.

Frequently Asked Questions of Traditional Knowledge And Patents

Q1. What is traditional knowledge in India?
Ans1. Traditional knowledge in India encompasses long-standing practices, innovations, and wisdom developed by indigenous and local communities, such as Ayurveda, yoga, traditional agricultural techniques, and ethnomedicine.

Q2. How is traditional knowledge passed down through generations?
Ans2. Traditional knowledge is typically transmitted orally from generation to generation, often through storytelling, teaching, and practice within families and communities.

Q3. Why is it challenging to patent traditional knowledge?
Ans3. Patenting traditional knowledge is challenging because it is often undocumented, lacks the novelty required for patents, and is already widely known within communities, making it difficult to meet patent application criteria.

Q4. What are some examples of traditional knowledge in India?
Ans4. Examples of traditional knowledge in India include Ayurveda (ancient medicine), yoga (physical, mental, and spiritual practices), indigenous agricultural practices, ethnomedicine, and traditional textile and craft techniques.

Q5. What is the Traditional Knowledge Digital Library (TKDL)?
Ans5. The Traditional Knowledge Digital Library (TKDL) is an initiative by the Government of India to document traditional knowledge in a digitized format to prevent its misappropriation by providing patent examiners worldwide with access to this knowledge.

Q6. How does the Biological Diversity Act, 2002 protect traditional knowledge?
Ans6. The Biological Diversity Act, 2002, regulates access to biological resources and associated knowledge, ensuring that local communities receive fair benefits from their use and preventing exploitation.

Q7. What was the significance of the Neem patent case?
Ans7. The Neem patent case highlighted the importance of documenting traditional knowledge. The patent for neem oil’s antifungal properties was revoked after proving its traditional use in India, underscoring the need for mechanisms to protect traditional knowledge.

Q8. How does the Protection of Plant Varieties and Farmers’ Rights Act, 2001 safeguard traditional agricultural knowledge?
Ans8. This act protects plant varieties and farmers’ rights to save, use, exchange, and sell their farm produce, ensuring traditional farming practices and knowledge are recognised and conserved.

Q9. Why is community involvement crucial in protecting traditional knowledge?
Ans9. Community involvement ensures that the custodians of traditional knowledge benefit from its commercialisation, fostering respect for indigenous cultures and promoting sustainable use through participatory research and benefit-sharing agreements.

Q10. What are some steps to bridge traditional knowledge with modern intellectual property rights?
Ans10. Steps include enhanced documentation of traditional knowledge, community involvement, international cooperation, legal reforms, and raising awareness and education about the value and protection of traditional knowledge.