In India there are about one hundred million forest denizens, among them, the majority are from tribal communities. Over the years, the forests have become the habitat of these dwellers. These occupiers have acquired quite a lot of knowledge as well as historic information concerning the natural surroundings, around their community. Overall, the forest and its denizens provide an ample amount of knowledge about the forest resources along with its varied products. Intellectual property rights are designed in such a manner that it fails to protect traditional knowledge. India needs to adopt upgradation in the field of patent, so as to prevent the traditional resources from biopiracy. This article will focus on the meaning of traditional knowledge, the patent issues with regard to traditional knowledge, and cases regarding the misappropriation of traditional knowledge.
Traditional knowledge is considered as the living body of knowledge, that is evolved, sustained, and surpassed from generation to generation in a society or community. To put it otherwise, the people of local communities get hold of their knowledge, different innovation, and experience they have expanded over time and adapt the local culture and environment, this is categorized as traditional knowledge. The knowledge is gathered by local people through many years of experience.
Traditional Knowledge has played a vital role in the lives of people globally. Such knowledge constitutes a critical part of their cultural background. It has become the identification for the local communities. It is essential for sustainable improvement as it contributes to sustainable use and the protection of biodiversity. However, it has been noticed that due to lack of protection, traditional knowledge is being exploited for commercial use. The traditional knowledge, the product, and practices associated with it are especially important to the developing countries and it is, therefore, necessary to protect it. Though in any part of the country, traditional knowledge is in menace.
Traditional knowledge is the innovations, practices, and knowledge that has been gathered from years of practice or experience. These are the knowledge that is adapted over time adapted following people. These usually get transmitted orally from generation to generation. To begin with, from dance form to eating style, clothing style, agricultural practices, chatting way, and many others has been adopted from experience from several ages. To be more specific traditional knowledge is more of practical nature, that is like agriculture, health, horticulture, environment management, and forestry.
Protection of Traditional Knowledge – Patentability Criteria
Intellectual right is the legal right vested upon the inventor or the creator of the work so as to protect his work from unauthorized access. A patent is one of the most used and essential laws of intellectual property rights. It can be defined as a right granted under the intellectual property rights framework to the owner of an invention. A patent is an exclusive right and by virtue of such right, the work or the invention can be protected from getting infringed. It is an exclusive as well as a negative right. The process along with the product come under patentable right. Patent right is granted for twenty years to the inventor.
Patent law is granted to any individual for his invention if the invention satisfies three grounds. To begin with novelty, that explains the invention must be new and mere discoveries will never be patentable. In addition to novelty, another ground is a utility or industrial application which means the invention must be useful. Lastly, the non-obviousness or inventive step is another ground which states the invention must not be obvious to a person of ordinary skill.
Traditional Knowledge as we know is gathered from the practices, experience that has been followed for years. It lacks an inventive character due to a lack of novelty from the initial stage. In other words, traditional knowledge is the information gathered for years and is being known to a vast number of people and hence lacks novelty.
A patent is granted to a single inventor. It follows a rule of ‘first come first served’ in the grant of patent. Whereas traditional knowledge is the knowledge of a particular community and the people hold the rights as a whole because they have acquired the knowledge for a long time.
It can be concluded that traditional knowledge is not eligible to fall for the protection of patents. Traditional knowledge requires more advanced protection for itself.
Misappropriation of Traditional Knowledge
Neem patent case
Neem tree is a native evergreen species grown in tropical and semi-tropical regions. It is available in most parts of India and the Indian subcontinent as Nepal, Bangladesh, Sri Lanka. The plant is well known for its Ayurvedic medicinal value for more than 4000 years. In India, neem leaves, as well as the tree, are used to cure antifungal, anti-inflation, anti-pyretic, and antiviral infections.
In 1971 a timber importer had imported neem seeds from India. He conducted some tests on neem plants and upon the pesticide properties of neem was given patent over it from US Environmental Protection Agency (EPA). Later he sold the patent to WR Grace. Since the neem extract was given clearance by EPA, Grace started commercializing it. The neem extract that was patented helps to control fungi on plants. Several other countries were searching for the formulation of an emulsion of neem paste. Afterward, Grace and co. claimed for the rights of emulsion and sued India for using such emulsion. India contented, the neem plant is its native product and is being in use for a long period of time. It is in the traditional knowledge of people and the product extracted from it was in the knowledge and not a novelty invention. It was further claimed to revoke the US patent. In 1997, the European Patent Office in reviewing the patent accepted the contentions of India and stated the US patent lacks novelty as well as the inventive step. As a result, it revoked all the US patents over neem-based emulsion and solution.
Turmeric Patent Case
Turmeric is a tropical herb found mostly in eastern India. It is well known for its medicinal value, food coloring, and cosmetics agent. In India, turmeric is used in curing common cold and as anti-parasitic for many skin-related infections.
In 1995 US granted a patent to the University of Mississippi medical center for the wound healing property of turmeric with the subject matter ‘turmeric powder and its administration’. It was granted an exclusive right to distribute and sell.
The patent was opposed by Indian Council for Scientific and Industrial Research (CSIR) that turmeric is in use for a long time in India prior to USPTO (the USA and European Patent Office). It further explained turmeric is being a common ingredient in every Indian household in their everyday life. Turmeric was in the traditional knowledge of Indian people. There were a number of evidence claiming turmeric was in the knowledge of people prior to art to the grant of patent.
In 1998, the judgment was in favor of CSIR. It was held that the patent was obvious and was used for a long for healing wounds. USPTO revoked its patent. Hence the traditional knowledge of India over turmeric is regarded as safe.
Traditional knowledge is the native product of local communities should be given more emphasis. The protection of traditional knowledge is a concern. It never fails to support the economy of the country. It is required to keep documents regarding the traditional knowledge so as to prevent the bio-piracy and misrepresentation of traditional knowledge. As it was observed from the above-mentioned case the traditional knowledge fails to concur patentability criteria, hence cannot be patented. To keep track of traditional knowledge or traditional resources the government can keep a database regarding it. Keeping a database record would be helpful in protecting and ensuring to protect the traditional knowledge that is in the knowledge of the public in the present time. While focussing on expansion, India being a developing country need to safeguard its country’s inherent knowledge.