LAW YOG

Traditional Knowledge and Patent Issues

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There is always a way to do it better. It is just a matter of fact to find a proper and different way with proper innovations to make things even better. Ideas and Inventions have been transferred and passed on from one generation to another generation be it music, dance or science and technology. In today’s practice, this can be defined as the collective knowledge of all the innovations and methods that have been occurred over a period of time then it passes on to another generation which calls this as traditional knowledge which has been transmitted with the communities over generations thus leading to a developed culture and respectful attitude within the community, resulting in encouraging the possession of the community leading a particular set of knowledge and innovation. 

However, this recent trend shows that these practices and ideas have now become roots for new inventions. One of the features of traditional knowledge is that it promotes the interest of the community as a whole and introduces the patent law which encourages private monopoly as well as gain. In the present business and materialistic world, traditional knowledge and patent laws have gained identification and acknowledgement. Preserving and protecting the traditional knowledge of the local communities seems to be one of the most complicated issues in today’s world. This need to protect the traditional knowledge gained the attention of the international community recently. India is known for the abundant amount of its species which have the potential of medicinal plants. In a recent study, it was estimated that this is under a threat due to degradation because of the sustainable methods of harvesting and lack of cultivation in our country.

Traditional Knowledge

Traditional knowledge is referred to as a knowledge which has been discovered and introduced by local communities over a period of time in response to their basic needs and requirements. The World Intellectual Property Organization(WIPO) defines traditional knowledge as “indigenous culture and heritage”. It can be defined as the skills, ideas and knowledge which pass over with the generation aiming to maintain cultural identity. These Ancient roots are developed as per the requirement of the generation. This knowledge has to be protected under a proper and authentic system of intellectual property. In order to define it more properly, a perfect example can be taken off the name, this is considered to have a lot of application and usage which includes medicinal properties, cosmetics and beauty products and certain best repellent sources etc. All of this knowledge has already been mentioned in Indian texts which are 2000 years old. If you talk about the innovation which is based on the protection of traditional knowledge this will consist of Trademarks, Geographical Indications like the Darjeeling tea, Banarasi sari they are protected on the basis of their Geographical Origin, Patent or even a Trade Secret like Coca Cola. The making of Coca-Cola has always remained a secret. Although there are prevalent techniques to protect our traditional knowledge, the major problem is regarding the successful documentation of traditional knowledge under the Indian patent act. In recent years we have faced many challenges and issues regarding the documentation of indigenous products and the traditional knowledge and due to which our Indian-based products which are based on the traditional knowledge of our India…..these products are being patented in other countries especially Western Countries and this finally leads to biopiracy of Indian traditional knowledge by the other countries.

Protection of Traditional Knowledge should aim to:

  1. Recognize value.
  2. Promote Respect
  3. Meet the actual rights and needs of holders of traditional knowledge
  4. Promote and preservation of traditional knowledge
  5. Empowering holders/owners of traditional knowledge and acknowledge the distinctive nature of traditional knowledge systems
  6. Supporting traditional knowledge systems
  7. Contribute to safeguarding traditional knowledge
  8. Promote innovation and creativity.

Patenting of Neem: A Case of Biopiracy

Neem is common and is considered as a well-known tree in India. There are a number of traditional uses of neem that can be in a form of fuel, contraception, toiletries, timber, acts as a vital source for pharmacy, agriculture usage, also very useful as a commercial application of insecticide.

Biopiracy Is considered illegal which includes patenting of living organisms, microbes or plants or animals without letting the real owners of those plants and animals order those traditional practices which are used from the ancient period. This can be defined as the theft of genetic material by a Patent Process. Cooperation of the western world has been using our traditional knowledge of the plant NEEM from the past two decades and has been gaining immense profit by these thus forming biodiversity hotspots. For centuries the western world ignores the neem tree and its properties. But in 1971, US timber importer Robert Larsen gained attention on the Neem trees’ usefulness in India and he began importing Neem seeds to his company in Wisconsin. For about a decade he conducted experiments and performed tests on the product and in 1985 he received clearance for the product from the US Environmental Protection Agency. Three years later he sold the patent for the product to the Multinational Chemical Corporation, W R Grace and Co. He secured his rights to the formula that is used to make powerful pesticides from the neem trees seeds. To a surprise, he began suing Indian companies for making the emulsion. This controversy raised many questions. India claimed that the company who is calling the discoveries is in reality stolen from the practices and knowledge of Indian people. The Indians and the members of the Green party in the European Union oppose big business owning the rights to living organisms because they believe that the rights of poor farmers in developing countries will be harmed and violated. A question arose whether the name tree is patentable since it is a product of nature? The main problem is that W.R.Grace does not have a patent on the tree itself, but rather on the process of making the emulsion. In order to support the indigenous knowledge systems and resources and to protect it from the piracy by the West particularly in the light of emerging threats of Intellectual Property Rights, a neem campaign was initiated in India. The neem patent1 became the first case to challenge Europeans and US patents on the ground of biopiracy. This case resulted in the victory of a four-year-long effort by the research foundation of science, technology and environment. Professor U.P Singh, an industrial scientist at the Banaras Hindu University presented India. However, the Patent was revoked. After this patents are supposed to satisfy three criteria – of novelty, non-obviousness and utility.

Patenting of Turmeric.

Turmeric is a flowering plant which is used in our daily household work. A US patenton turmeric was awarded to the University of Mississippi Medical Center, in May 1995 which is especially for the use of turmeric in wound healing. This patent was promptly challenged by Dr R.A Mashelka, Who has done a study in Intellectual Property Rights issues. He provided the fact that turmeric has been used medically for thousands of years, which lead to the growth of concerns about the economic and social damage being done by the impact of this legal biopiracy. CSIR argued that turmeric has been used for thousands of years for healing bones and that its medicinal use was not a new invention. This claim was positively supported by the documentary evidence of traditional knowledge, including all the Asian Sanskrit texts which were published in 1953 in the general of Indian Medical Association. After the response by the Plantee and the second action report, all of the re-examination work was done and finally, in April 1998 a certificate was issued and the proceedings concluded the case in favour of CSIR. In order to prevent further such cases, CSIR India has directed the creation of a massive database which will record all the practical ideas proposed in the Indian knowledge systems. Once created, it will deny any biopiracy on the basis of prior knowledge of their use has existed already.

Patenting of Basmati Case

US patent office granted beaten to RICETEC Company on 2 September 1997. This gave the company the right to grow aromatic rice in America and call it Basmati. That patent covers 20 claims, novel rice lines and existing price lines. In claims 15 to 17 rice grains having characteristics like Basmati were claimed.

As per the Geographical Indication rice grown in a particular part of India can be called as Basmati which was contradictory to the aromatic rice in America. India opposed this patent2 by giving certain proofs of traditional and indigenous knowledge. Still, this case has not been resolved but the Indian government is actively taking the initiative to pursue this case, with the agenda that it violates both TRIPS and the CBD.

Golden Rice Case

The golden rice is famous for its uniqueness in the quality of the rice. It is grown in some of the test plots in the Philippines and there is no such price ever grown before anywhere else. This disposes gently engineered by two European scientists who discovered that yellow colour dries is enriched in vitamin A. This technology is being held by multinational Argo company Syngenta and the United Nations. For a long time, our Indian crop scientists were seeking the permission to operate and commercialize the vitamin-rich rice in the Indian Council of agriculture as it would not be able to produce the golden rice on its own. Golden rice aims to the use and dissemination of technology among poor people. There were a number of patent technologies involved in the production of Golden Rice.   Syngenta AG, a global company was able to negotiate and also to provide the golden rice technology to various institutions in developing countries which is surprisingly free of charge.

Conclusion

In this era of globalization, this has rooted to the misuse of Traditional Knowledge and the granting of monopolistic rights without the prescribed knowledge and in spite of the fact that the Traditional Knowledge has been known and used for centuries by indigenous groups and different Communities generation over generation.  Authentic systems and Documentation activities are undertaken by developing countries like India are worth applicable and recognition. However, there is a need for awareness and strict measures to be taken in order to respect and value the Traditional Knowledge. Corporation and institutions can always find a method to commercially exploit and violate Traditional Knowledge in order to gain an advantage. The main objective of protecting Traditional Knowledge should include equitable distribution of benefits among the parties, conservation concerns related to the product, preservation of traditional practices and culture for next-generation, the prevention of misuse by unauthorized parties of Traditional Knowledge for their personal gain and focusing on the promotion of its use and its importance in development in the society as a whole.

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