Intellectual Property Rights and Traditional Knowledge

The term Intellectual Property (IP) reflects the idea that its subject matter is the product
of the mind or the intellect. These could be in the form of Patents; Trademarks;
Geographical Indications; Industrial Designs; Layout-Designs (Topographies) of
Integrated Circuits; Plant Variety Protection and Copyright. IP comes under international
legal protection. Intellectual property rights can be defined as the rights given to people
over the creations of their minds. They usually give the creator an exclusive right over the
use of his/her creations for a certain period of time. These are governed by Trade-Related
aspects of Intellectual Property Rights (TRIPS) agreement. TRIPS agreement is outcome
of Uruguay round of General Agreement of Tariffs and Trade (1986-1994). Basically, it is
a multilateral agreement for minimum level of protection of Intellectual Property Rights.
It is for harmonization of laws across the globe. Till now 153 countries have signed the
agreement.
TRIPS agreement enlist following as IP

Copyright and related rights,

Trademarks,
Geographical indications,
Industrial designs,
Patents,
Integrated circuit layout-designs and
Protection of undisclosed information

Traditional Knowledge (TK):

Human beings are known for using their intellect and trying to develop some knowledge
out of some raw information. Also, they transfer this well developed and organized
knowledge to the next generation. The transfer of knowledge from generation to
generation goes on and ultimately the knowledge is termed as traditional knowledge.
Such traditional knowledge is often an important part of their cultural identities. We
can cite very relevant examples where Traditional knowledge has been playing a
significant role in achieving better life for people. The definition of traditional knowledge
used by the World Intellectual Property Office (WIPO) includes indigenous knowledge
relating to categories such as agricultural knowledge, medicinal knowledge, biodiversityrelated knowledge, and expressions of folklore in the form of music, dance, song,
handicraft, designs, stories and artwork. Especially in developing world, TK plays a
crucial role in food security and herbal treatment. In many developing countries
traditional medicines i.e. "alternative" or "complementary" medicine) provide the only
affordable treatment available to poor people. So, Traditional knowledge (TK) is a
collectively owned property and is integral to the cultural or spiritual identity of the social
group in which it operates and is preserved. Traditional Knowledge is now at the centre
of the discussions on intellectual property rights and has assumed immense significance.

Some examples of traditional knowledge are:

Thai traditional healers use plao-noi to treat ulcers

Use of the Ayahuasca vine by Western Amazonian tribes to prepare various
medicines.
The San people use hoodia cactus to stave off hunger while out hunting
Sustainable irrigation through water systems such as the aflaj in Oman and
Yemen and the qanat in Iran

It is noteworthy to mention that knowledge is not rendered traditional due to antiquity but
due to the fact that it has been developed, sustained and passed on within a traditional
community, and is passed between generations, sometimes through specific customary
systems of knowledge transmission. Hence it is the relationship of the knowledge with
the community that makes it traditional.

Traditional Medicine:
As per World Health Organization, Traditional medicine (TM) refers to the knowledge,
skills and practices based on the theories, beliefs and experiences indigenous to different
cultures, used in the maintenance of health and in the prevention, diagnosis, improvement
or treatment of physical and mental illness. Traditional medicine covers a wide variety of
therapies and practices which vary from country to country and region to region. In some
countries, it is referred to as "alternative" or "complementary" medicine (CAM).
Traditional medicine has been used for thousands of years with great contributions made
by practitioners to human health, particularly as primary health care providers at the
community level. TM/CAM has maintained its popularity worldwide. Since the 1990s its
use has surged in many developed and developing countries.
Issues: The importance of TK is evident everywhere, especially in developing and least
developed nations, where sophisticated resources are scarce. Though there is
governmental and other agencies efforts to preserve and promote TK, yet final and
universally acceptable solutions for the protection and promotion of traditional
knowledge have not yet emerged.
The Convention on Biological Diversity also set out principles governing access to
genetic resources and the knowledge associated with them, and the sharing of benefits
arising from such access. We therefore consider the relationship between the IP system
and the access and benefit sharing principles of the CBD in the context of both
knowledge, traditional or otherwise, and genetic resources.

Traditional Knowledge Digital Library (TKDL)

The idea of TKDL was conceived so as to prevent granting of wrong patents based on
Indian Traditional Knowledge (ITK), dissemination of information about ITK on
medicines and broadening the scope of research on Ayurveda. Protection and preservation
of traditional knowledge have been a matter of concern to the developing countries in
general and India in particular.
In recent years concern has been expressed in relation to the recognition of traditional
knowledge as prior art. Patents have been granted for traditional knowledge-related
inventions which did not fulfill the requirements of novelty and inventive step when
compared with the relevant prior art. This prior art consisted of traditional knowledge that
could not be identified by the patent-granting authority during the examination of the
patent application. The term prior art generally refers to the entire body of knowledge
which is available to the public before the filing date of an application for certain
industrial property titles, principally patents, utility models and industrial designs. The
identification of prior art constitutes a cornerstone for the substantive examination of
applications for these titles, since requirements such as novelty and inventive step are
established by comparing the claimed subject matter with the relevant prior art.

India successfully contested the grant of patents that are based on well established
Traditional knowledge, i.e. turmeric for wound heeling (US Patent No. 5401540), neem
for anti-fungal properties (EPO Patent No, 0436257), Basmati, etc. The revocation of
patent granted to derivatives of neem on the ground that they were part of the traditional
knowledge of our country and that fungicide qualities of the neem tree and its use had
been known in India for over 2,000 years is a big achievement. The grant of these patents
in United States and Europe were the cause of great national distress, since, every Indian
felt that the knowledge that belonged to India were wrongfully taken away from India.
Further, the patents would have conferred exclusive rights on the use of technology to the
applicant of the patent in the country in which it has been granted. Cancellation of these
patents established that (i) it is feasible to oppose grant of wrong patents at international
level; and (ii) it is extremely expensive and time consuming to contest the wrong patents
at international level. Cancellation of the patent for turmeric took about 2 years whereas
that for neem it took 5 years. Grant of wrong patents at international level happens owing
to non-availability of information in a language known to International Patent Examiner
and also, the information not being in retrievable form. Therefore, need was felt to adopt
a practical and scientific approach to the problem of grant of wrong patents in our
traditional knowledge systems at international level.
The Department of Indian System of Medicine and Homoeopathy (ISM&H) constituted
an inter- disciplinary task force consisting of Ayurveda experts from Central Council of
Research in Ayurveda and Siddha (CCRAS), Banaras Hindu University (BHU),
Department of ISM&H, patent examiners from the Office of the Controller General of

Patent, Design and Trade Marks (CGPDTM), information technology experts from
National Informatics Centre (NIC), and scientists from Council of Scientific and
Industrial Research (CSIR), under the Chairmanship of Mr V K Gupta, Director, National
Institute of Science Communication (NISCOM), New Delhi.
The Task Force carried out an extensive search on international patent databases and
found that more than five thousand patent references on ninety medicinal plants appeared
in United States Patent and Trademark Office (USPTO) databases alone. Out of these
references on ninety medicinal plants, 80% were on seven medicinal plants of Indian
origin. The extensive study done on 762 patents granted on medicinal plants by USPTO
revealed that more than 45% patents could be categorized as patents belonging to
traditional knowledge system. Several illustrative cases were identified, such as the use of
turmeric for the treatment of skin disorders; herbal compositions and their use as
hypoglycemic agent for its anti-viral effect, and in the treatment of diabetes,
musculoskeletal diseases, etc for which direct references of prior art are available in
Ayurveda. The Task Force devised a methodology for creating a Traditional Knowledge
Digital Library (TKDL) based on fifteen well- known Ayurvedic books which are being
referred at undergraduate and postgraduate level courses in Ayurveda and are also wellknown to Ayurvedic practitioners. These books could be easily purchased by any member
of public and library (Indian or foreign) at a total cost of Rs 15,000.
The TKDL concept and methodology were also discussed with eminent experts in
Ayurveda with respect to the advantages and disadvantages of creating such a digital
library in public domain. Eminent Ayurvedic experts were of the opinion that TKDL,
besides ensuring prevention of the grant of wrong patents for non-original inventions in
our traditional knowledge system at international level, shall also ensure enhancement of
modern research in Ayurveda and provide immense benefit to MD and PhD students,
researchers and manufacturers. TKDL will also provide a feedback mechanism on the
coverage of different viewpoints and minimize controversies on herbal drugs in future.
The Cabinet Committee on Economic Affairs has approved early establishment of
Traditional Knowledge Digital Library in Ayurveda in the first instance followed by
similar digital libraries in other systems of Indian medicines, such as Unani, Siddha,
Yoga, Naturopathy, etc. This was also included in the budget speech of Hon'ble Finance
Minister.
At international level, TKDL has received wide acceptance and support. World
Intellectual Property Organization (WIPO) in its 3rd plenary session at Geneva, at the
initiative of India, decided to take up the creation of traditional knowledge databases on
the knowledge available in public domain so that such databases can facilitate
establishment of prior art.
India through an Access Agreement with European Patent Office, has established a
mechanism to protect Indias traditional medicinal knowledge from bio-piracy. The
maiden Indian effort in creating Traditional Knowledge Digital Library (TKDL)
database would now be available to the Patent Examiners at European Patent Office

(EPO having 34 member states) for establishing prior art, in case of patent applications
based on Indian systems of medicine. The accessibility of data base has come into
operation from February 2, 2009.
This international agreement is unique and would have long-term implications on the
protection of traditional knowledge and global intellectual property systems as would be
evident from the fact that in the past, patents have been granted at EPO on the use of over
285 medicinal plants due to the lack of access to the documented knowledge in public
domain for the examiners of EPO. Also, at any point in time, 40-50 patent applications
based on Indian traditional knowledge are awaiting grant of patent and TKDL Access
Agreement would prevent all future grant of patents wherever evidence of prior
knowledge exists in TKDL.
The TKDL Access Agreement with EPO would enhance the negotiating strengths of India
and developing countries at the international forums. In fact, the international IP
community has recognized TKDL as an effective tool for defensive protection of
Traditional Knowledge. In a recent communication, the Director General, World
Intellectual Property Organization, has recognized TKDL as a strong practical tool, which
has made unparallel contributions to the international policy context of the patent systems
by offering a template for other countries who seek to protect their traditional knowledge.
The TKDL Access Agreement with EPO would pave the way for similar agreement with
other major international patent offices to prevent the misuse of this vast information of
huge economic potential in easy to access form.
Legal Protection of Traditional Knowledge- International context
International initiatives at protecting traditional knowledge include the Convention on
Biological Diversity, International Undertaking on Plant Genetic Resources for Food and
Agriculture and the Agreement on Trade Related Aspects of Intellectual Property Rights.
The Convention on Biological Diversity imposes general obligations relevant to the
conservation, sustainable use, sharing of information on, and equitable sharing of benefits
derived from biodiversity. The International undertaking on Plant Genetic Resources for
Food and Agriculture was the first comprehensive international agreement dealing with
plant genetic resources for food and agriculture. This is a non-binding agreement.
But there are no uniform norms regarding the protection of different types of traditional
knowledge owned by local communities. The reason for this divergence of laws is that
the international community never had an occasion to look at the protection of traditional
knowledge in its entirety. Measures to ensure that traditional knowledge is protected
should be taken at the auspices of the World Trade Organization which should lay down
general mandatory provisions to be complied by member countries.
The TRIPS Agreement also has some provisions having limited application to the
protection of traditional knowledge. The obligation to protect geographical indications

can be used to protect traditional knowledge if associated with the indication used for
production and sale of goods. It is made clear that a given quality, reputation or other
characteristics of the goods essentially attributable to its geographical origin are to be
considered in identifying the geographical indications for protection. Thus it may be
possible for protection through geographical indication the traditional knowledge
associated with goods. Thus it is clear that there is a general agreement within the
international community that there is a need to recognize the traditional knowledge. It is
also evident that wherever possible it must be identified with the community and treat
them as the holders of such knowledge if it is confined to the community. It is the notion
of collective enjoyment of property by the members of the community that is reflected in
these norms. The concern is to recognize it, take measures to ensure that communities are
involved in the preservation and development of it and proper benefits return to them in
case of commercial exploitation by others. But the method of achieving it is left to
individual nations. But there are no uniform norms regarding the protection of different
types of traditional knowledge owned by local communities. The reasons being that the
international community never had an occasion to look at the protection of traditional
knowledge in its entirety.
The Trade Related Aspects of Intellectual Property Rights Agreement requires as a
general rule that patents be granted in all areas of technology without discrimination.
Article 27.3(b) provides a limited exception to the general rule on scope of patentable
subject matter
WTO members do not have to, but may, provide protection for plant and animal
inventions and for biological processes for producing plants and animals
Members must provide patent protection for micro-organisms and non biological and
microbiological processes
Members must also provide some form of protection for new plant varieties (patents, a
sui generis system such as plant breeders rights or a combination of both)
The WTO Council for TRIPS is currently revising Article 27.3 (b) of the TRIPS
Agreement, which deals with the patentability of traditional knowledge. The 2001 Doha
Declaration of the Fourth WTO Ministerial Conference says that work in the TRIPS
Council on these reviews should examine the relationship between the TRIPS agreement
and the UN Convention on Biodiversity; the protection of traditional knowledge and
folklore; and other relevant new developments.
Convention 169 of the International Labour Organization recognizes and protects the
social, cultural, religious and spiritual values and practices of indigenous and tribal
peoples. Article 4 provides for special measures to be adopted as appropriate for
safeguarding the persons, institutions, property, labour, cultures and environment of the
peoples concerned. Article 8 states the need for the recognition of customary law
systems. A sui generis legislation has to be developed for the purpose similar to those

provided for under theWTO/TRIPS Agreement Article 27 (3) (b). The core IP issues can
be protected by the WIPO treaties and the TRIPS Agreement.
The pressing need of the hour is to enact a sui generis or alternative law to protect
traditional knowledge.
Legal Protection of Traditional Knowledge- Indian context
India does not have any specific legislation for protecting traditional knowledge. But the
Patents Act, 1970 as amended in 1999, 2002 and 2005; Plant Variety Protection and
Farmers Rights Act, 2001; Biological Diversity Act, 2002; and Geographical Indication
of Goods (Registration and Protection) Act, 1999 have provisions that can be utilized for
protecting traditional knowledge. The concept of benefit-sharing, which is an integral
part of protecting traditional knowledge, has been analysed in detail with specific
reference to the Biological Diversity Act and also the Plant Variety Protection and
Farmers Rights Act. The case study of Jeevani drug gives an insight into the concept of
benefit sharing.
Recently amended patent law of India contains provisions for mandatory disclosure of
source and geographical origin of the biological material used in the invention while
applying for patents in India. Provisions have also been incorporated to include nondisclosure or wrongful disclosure of the same as grounds for opposition and for
revocation of the patents, if granted. To protect traditional knowledge from being
patented, provisions have also been incorporated in the law to include anticipation of
invention by available local knowledge, including oral knowledge, as one of the grounds
for opposition as also for revocation of patent. In order to further strengthen these
provisions, a new provision has been added to exclude innovations which are basically
traditional knowledge or aggregation or duplication of known properties of traditionally
known component or components from being patented. India is a party to the Convention
on Biological Diversity (CBD), which came into force in December 1993. The CBD
offers opportunities to India to realize the benefit of these resources.
The Biological Diversity Act provides for protection of biological diversity, sustainable
use of its components and equitable benefit sharing arising out of the use of the biological
resources. It addresses the basic concerns of access to, collection and utilization of
biological resources and knowledge by foreigners and sharing of benefits arising out of
such access. The legislation also provides for a National Authority, which will grant
approvals for access, subject to conditions, which ensure equitable sharing of benefits.
The main intent of this legislation is to protect Indias biodiversity and associated
knowledge against their use by individuals/ organization without sharing the benefits
arising out of such use and also to check bio-piracy. The legislation provides for a federal
management structure with the National Biodiversity Authority (NBA) at the apex and
Biodiversity Management Committees (BMCs) at local community level. The BMC and
the NBA is required to consult BMC in decisions relating to the use of biological
resources/ related knowledge within their jurisdiction. The legislation also provides for
promotion of conservation, sustainable use and documentation of biodiversity. Prior
approval of NBA would be required for applying for any form of IPR within or outside

India for an invention based on research or information on biological resource obtained

from India. The Indian legislation for the Protection of Plant Varieties and Farmers Right
Act 2001 also acknowledge that the conservation, exploration, collection,
characterization. evaluation of plant genetic resources for food and agriculture are
essential to meet the goals of nation food and nutritional security as also for sustainable
development of agriculture for the present and future generations. It also acknowledges
that the plant genetic resources for food and agriculture are the raw material
indispensable for crop genetic improvement. The concept of effective benefit
sharingarrangement between the provider and the recipient of the plant genetic resources
forms an integral part of our Act. The amount of benefit sharing will be based on the
extent and nature of the use of genetic material of the claimant in the development of the
variety and also the commercial use and sale in the market of the variety. To make this
meaningful, mandatory disclosure of the geographical location from where the genetic
material has been taken and information relating to the contribution, if any, of the farming
community involving such variety, has been made. The protection provided to a plant
variety bred by a breeder can be cancelled if there is an omission or wrongful disclosure
of such information. The Geographical Indication of Goods (Registration and Protection)
Act, 1999 passed by Parliament is another step taken by India. The Act primarily intends
to protect the valuable geographical indications of our country. The protection under the
Act is available only to the geographical indication registered under the Act and to the
authorized users. The Act permits any association of persons or producers or any
organization or authority established by law representing the interest of the producer of
goods to register a geographical indication . It may be possible for the holders of the
traditional knowledge in goods produced and sold using geographical indication can
register and protect their traditional knowledge under this law.

Turmeric Case
Turmeric (Curcuma longa) is a plant of the ginger family yielding saffron-colored
rhizomes used as a spice for flavoring Indian cooking. Its unique properties also make it
an effective ingredient in medicines, cosmetics and as a color dye. As a medicine, it is
traditionally used to heal wounds and rashes. In March 1995, two expatriate Indians at the
University of Mississippi Medical Centre, Jackson, (Suman K Das and Hari Har P.
Cohly) were granted a US patent for turmeric to be used to heal wounds.
The Indian Council for Scientific and Industrial Research (CSIR) filed a case with the US
Patent Office challenging the patent on the grounds of prior art, i.e. existing public
knowledge. CSIR said turmeric has been used for thousands of years for healing wounds
and rashes and therefore its use as a medicine was not a new invention. CSIR also
presented an ancient Sanskrit text and a paper published in 1953 in the Journal of the
Indian Medical Association. The US Patent Office upheld the objection and cancelled the
patent. The turmeric case failed to meet the novelty criteria.

The Case of Neem:

With the medicinal value of its leaves and seeds, the Neem tree is very popular in India,
its country of origin. Its products have numerous medicinal properties, for this reason the
Neem is also called "the tree of miracles" or "the village pharmacy." Today many
companies are struggling to patent substances derived from this ancient tree, a clear
example of biopiracy.
Neem is used in Asia for thousands of years. The first writings that indicate that Neem is
used as medicine dating back over 4,500 years old or so. In Indian herbal medicine
books, including "Caraka Samhita" or the "Sushruta Samhita", the Neem mentioned on
many occasions as suitable to treat a wide range of diseases.
This valuable tree, is used in its entirety. It is used medicinally to treat skin diseases,
fever and infections. Its flower, with very pleasant aroma is used by bees to produce
honey of excellent quality, its wood is used for furniture, fuel and housing and its extract
is used in pest control and as insecticide.The products made from Neem derivatives are
commercially important. For this reason many companies have tried to register their
patents derived from this tree.
In 1994, a U.S. Department of Agriculture granted a patent for a fungicide made from
Neem oil. This decision brought significant opposition from many NGOs and
environmental organizations that oppose biopiracy. It drew up a petition against this
patent, which said:

Biological resources are a common heritage and should not be patented

A patent would prevent local communities (who have used the product for
centuries) to continue using the Neem
The patent could block economic development in developing countries.

The European Patent Office agreed to withdraw the patent in May 2000 confirming that
"nothing has been invented, and that knowledge and use of Neem have been widespread
in India and elsewhere for many decades." India's support was vital to cancel the patent.

Jeevani
Jeevani is a restorative, immuno-enhancing, anti-stress and anti-fatigue agent, based on
the herbal medicinal plant arogyapaacha, used by the Kani tribals in their traditional
medicine. Within the Kani tribe the customary rights to transfer and practice certain
traditional medicinal knowledge are held by tribal healers, known as Plathis. The
knowledge was divulged by three Kani tribal members to the Indian scientists who
isolated 12 active compounds from arogyapaacha, developed the drug Jevaani, and
filed two patent applications on the drug (and another patent based on the same plant but
for different use). The technology was then licensed to the Arya Vaidya Pharmacy, Ltd.,
an Indian pharmaceutical manufacturer pursuing the commercialization of Ayurvedic
herbal formulations. A Trust Fund was established to share the benefits arising from the
commercialization of the TK-based drug Jevaani. The operations of the Fund with the

involvement of all relevant stakeholders, as well as the sustainable harvesting of the

arogyapaacha plant, have posed certain problems which offer lessons on the role of
intellectual property rights in benefit-sharing over medicinal plant genetic resources and
traditional medicinal knowledge.
The health tradition of the Kani tribes inhabiting the forests of the Western Ghat region
of Kerala is quite rich. The herbal lore of this tribal community of a large number of wild
plants found in the flora-rich forests of the Western Ghats holds a lot of potential for the
future. Conservation of biodiversity and related knowledge systems thus has to be an
important objective of any benefit sharing system apart from the improvement of local
livelihood support systems. While the Kani informants had used the plant fruits for
vitality and energy, the scientists had made the preparation by using the leaves of the
plant. But the fact that the plant was being used for the same purpose for which local
people used it underlined the logic of benefit-sharing. After all if the local communities
had not conserved the biodiversity, the probability of scientists making any selection at
all will be remote or nil. In cases where local communities provide the lead and the use of
the biological resource in the TK is identical to the use of the resource claimed in the
patent application, the case stands for:

sharing intellectual property, i.e. shared inventorship,

shared licensing agreement, and
common benefit-sharing.

The current IPR system cannot protect traditional knowledge for three reasons. First, the
current system seeks to privatize ownership and is designed to be held by individuals or
corporations, whereas traditional knowledge has collective ownership. Second, this
protection is time-bound, whereas traditional knowledge is held in perpetuity from
generation to generation. Third, it adopts a restricted interpretation of invention which
should satisfy the criteria of novelty and be capable of industrial application, whereas
traditional innovation is incremental, informal and occurs over time. A sui generis,or
alternative law, is therefore necessary to protect traditional knowledge.
* Bio-piracy:
The commercial development of naturally occurring biological materials, such as plant
substances or genetic cell lines, by a technologically advanced country or organization
without fair compensation to the peoples or nations in whose territory the materials were
originally discovered. Biopiracy is the illegal appropriation of life -- microorganisms,
plants and animals including humans, and the traditional cultural knowledge that
accompanies it. Biopiracy is illegal because, in violation of international conventions and
(corresponding domestic laws, it does not recognize, respect or adequately compensate
the rightful owners of the life forms appropriated or the traditional knowledge related to
their propagation, use and commercial benefit. Biopiracy commonly operates through the
application of Intellectual Property, primarily patents, to genetic resources and traditional
knowledge.