Traditional Knowledge Rights And Intellectual

Property Rights: The Tale Of Two Rights

“Traditional knowledge" comprises of the vast expanse of knowledge, innovations and practices of
indigenous and local communities embodying their traditional life-styles.
'Traditional knowledge' refers to tradition-based literary, artistic or scientific works; performances;
inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information;
and all other tradition-based innovations and creations resulting from intellectual activity in the
industrial, scientific, literary or artistic fields. 'Tradition-based' refers to knowledge systems,
creations, innovations and cultural expressions which: have generally been transmitted from
generation to generation; are generally regarded as pertaining to particular people or territory;
and, are constantly evolving in response to a changing environment. Categories of traditional
knowledge could include: agricultural knowledge; scientific knowledge; technical knowledge;
ecological knowledge; medicinal knowledge, including related medicines and remedies;
biodiversity-related knowledge; 'expressions of folklore'." [1]
This system of knowledge finds it basis in a string of wisdom developed over many generations
towards a homegenous existence of mankind with key elements such as natural resources, and
environment holistic traditional scientific utilization of the lands playing an integral role in the
existence and sustenance of this knowledge base. Although usually not documented on a material
medium, it is generally passed, from generation to generation and is, by word of mouth in strict
confidence with a pious basis for such transfer.
Some of the best known forms of Traditional Knowledge are expressed through songs, rituals,
stories, and the more recently abused, traditional medicinal knowledge. This body of knowledge is
a part of the cultural and ethnic identity of the indigenous peoples. Western style industries have
increasingly had recourse to genetic resources and traditional knowledge, In most cases,
transnational corporations have exploited this knowledge base and resources of the indigenous
peoples without adequate or appropriate consent- and sometimes no consent at all. The health
care industry with its overburdening reliance on innovation, and patents, depends on medicinal
ecological knowledge to derive eco-friendly products with minimum side effects from plants and
other natural genetic resources. Most indigenous and local communities are situated in world’s
most biological rich and diverse, areas with abundance in natural resources, however economically
disadvantaged. To them this natural environment is a way of life and a part of their cultural
existence.
Each community enjoying such a knowledge base has preserved such knowledge over generations.
However today, this knowledge has either by fraud, misrepresentation been exploited by
transnational corporations making unconceivable profits by a mere access to such components in
the knowledgebase. Assuming that such a community was adequately compensated in respect of
the ownership of such a traditional knowledge, members of such communities view find the benefit
sharing ratio abysmally low while some view such a knowledge with absolute sanctity and an act of
parting with the same to be an act of sacrilege.
The present article seeks to address the position of the law of patents and traditional knowledge.
Aspirin, the most widely used pharmaceutical in the world was derived from salicylic acid
discovered in meadowsweet. The cure for cancers like Hodgkin’s disease and acute lumphocytic
leukemia was discovered from the rosy periwinkle plant grown in Madagascar. The saliva of the
vampire bat of South America opens clogged arteries faster. The list is long and is impressive.[2]
Out of the 120 active compounds currently isolated from the higher plants and widely used in
medicine today, 75% show a positive co-relation between their modern therapeutic use and the
traditional knowledge of their use from which they were derived.[3]
Biopiracy as is rampant in recent times has a great bearing while discussing traditional medicine.
The cause of such rampant biopiracy finds its roots in diametrically opposite patent protection
systems between the East and the West.
The classic example has been the relations of India and USA with respect to traditional medicine.
This can be analyzed with a special reference to the Neem and Turmeric Patents that were granted
in the early 90s International pressures and collective action through the support of various Non-
governmental organizations saw the revocation of these symbols of tradition and culture.
The Neem Patent
(Biological name: Azadirachta indica). In India the neem tree is known as sarva-róga nívarini" or
"curer of all ailments," and more recently in English as the “wonder tree.” i.e after its medicinal
properties were discovered by the West.
An agricultural chemical company based in Florida was granted a Patent in respect of the neem
tree. The active ingredient was isolated and a storage friendly version was created. The company
owns a patent with respect of the method of creating a stabilized azadirachtin in solution and the
stabilized azadirachtin solution itself. This solution was soon introduced as a pesticide in the farms.
On a review of the patentability provisions and following the concept of “products of nature” as has
been followed in the United States, on the face of it, the invention appears new and novel. The
whole exercise of isolating and purification of the substance satisfies the grounds of novelty and
inventive step as required under US Patent laws. Under Section 102 of the U.S. Patent Act, prior
foreign use can invalidate a U.S. patent only where such use "is fixed in a tangible, accessible form
such as by a description in a printed publication, or in a document related to either the applicant's
own foreign patent or some other person's foreign patent.[4]
The validity of the patent can be challenged and revoked only on the ground that the said use is in
a fixed tangible form and well documented in a printed publication.
The U.S. patent law poses serious obstacles to indigenous communities outside the US to initiate
such a revocation proceeding. Most of the knowledge of the indigenous peoples is undocumented
and passed from generation to generation only by word of mouth and in strict confidence. The
provisions regarding revocation of patents on the grounds of prior art by a foreign litigant having
to satisfy the requirement in a publication or any other tangible form has been severely criticized
by Vandana Shiva. She comments that
“Novelty exists mainly in the context of the ignorance of the West.
In 1986, Ayahuasca, a vine native to the Amazon Rain Forest, was patented by Loren Miller, an
American scientist and entrepreneur. This plant has been used by healers and religious leaders
throughout the Amazon for generations and since time immemorial. Shamans have used
ayahuasca to treat sicknesses, contact spirits, and foresee the future. Many indigenous Amazon
tribes also view the plant as a sacred symbol of their religion.
The natives and the tribal leaders of the learnt of the existence of such monopoly right granted
several years after it was so granted. Antonio Jacanamijoy, the leader of a council representing
more than 400 indigenous tribes and groups in South America, stated,
"[o]ur ancestors learned the knowledge of this medicine and we are the owners of this
knowledge."
In 1999, Jacanimijoy's council applied for and obtained a rejection of the ayahuasca patent from
the U.S. Patent and Trademark Office. The controversy over the patent generated considerable
hostility between the United States and Ecuador. However a substantial issue in question remained
unaddressed-whether the rejection was based on the property being prior art, a part of the
traditional knowledge or because it was sacred to the indigenous community.[5]
These instances force the reader to examine the necessity of a provision in the American patent
law regarding public order, morality, and protection of Indigenous knowledge, It also forces the
reader to analyse the breadth and scope of “novelty” as understood under the US law and its
insufficiency.
The Kani Tribe
The concept of benefit sharing in the development of herbal medicines and traditionally obtained
medicines has begun to find its place in the realm of property.
“Jeevani” is a herbal medicine developed by the scientists of the Tropical Botanic Garden and
Research Institute (TBGRI) located in the State of Kerala, Jeevani is based on the traditional
medicinal knowledge of the Kani tribe found in the Thiruvananthapuram district of the State of
Kerala in South India. It is derived from the arogyapaacha plant (trichopus zeylanicus) a small
rhizomatous, perennial herb found in Sri Lanka, Southern India, and Malaysia.
Jeevani is reported to have the following indications:
• Activates the body’s natural defenses
• Activates delayed type hypersensitivity reactions and antibody synthesis
• Increases the number of polymorphonuclear granulocytes.
• Activates the cellular immune system
• Exhibits hepato-protective and cholorectic activities
• Has adaptogenic properties as evidenced by anti-peptic ulcer and anti-fatigue effects
The fruit of the arogyapaacha plant was shared with members, to the Western Ghats Kani tribals
in 1987 who felt “charged and full of energy and vitality” following eating the fruit. The effects of
Jeevani have been reported in the popular press. Jeevani has also found a place for itself in
Japanese herbal medicines. Investigations were undertaken to isolate the active elements in the
arogyapaacha plant –followed by clinical trials to demonstrate the effect of arogyapaacha in
improving athletic performance, mental alertness and work output. It was observed by researchers
at TIBGRI that “without intellectual property protection they would not be able to generate much
revenue by licensing the drug they developed. This necessitated some legal protection to be
afforded to the plant in question.
Three patents claiming processes for the preparation of herbal drugs based on arogyapaacha were
filed in India. TGBRI, the sole patent holder on Jeevani as an immunomodulator committed to
share royalties with the Kani. In turn TGBRI issued a seven year license to Arya Vaidya Pharmacy
which produces herbal extracts from Jeevani. TIBGRI negotiated agreements to transfer
technology related to arogyapaacha to interested parties on payment of a license fee. With the
assistance of TIBGRI, a trust was created to promote both the welfare of the Kanis in Kerala, and
for the sustainable use and conservation of biological resources. Monetary benefits, in the form of
a percentage of the royalties received by TIBGRI for the use of its arogyapaacha-related
technology, have been paid into this Trust. The creation of a trust is viewed as a welcome decision
which installs trust and confidence amongst the members of the indigenous community. A number
of questions pertaining to intellectual property arose during the development work done in respect
of the arogyapaacha plant and its commercialization. They may be enumerated as under:
• Whether the kanis are entitled to the patent. If yes, whether as inventor, or joint inventor
or traditional healers?
• The proportion of the benefits awarded to the Kanis in light of the initial work by the kanis
themselves, and subsequently the TIBGRI who undertook the task of identification and
isolation of compounds and other related processes.
• The high demand may result in an increase in the rate of cultivation of the plant which
may cause ecological and environmental concerns.
• Should programs for the sharing of benefits be managed at the level of the individual, sub-
clan, clan (Kanis), state (Kerala) or nation (India)?;
 • the plant, arogyapaacha is native to India, Sri Lanka, and Malaysia, hence there seems to
be a moral responsibility to share the benefits with other nations and other groups of
indigenous peoples. The geographical proximity gives rise to such issues which need to be
tackled with sensitivity and a balanced approach.
It was evident that traditional intellectual property rights were insufficient to answer the questions
raised hereinabove and also ill equipped to protect the rights of the holders of traditional
knowledge.
The Western concept of Intellectual Property law is based on author/inventor centric concepts. The
knowledge system of the indigenous peoples is based on the creation of a work by the community
as whole with community right in such works and no the absolute monopoly of an identifiable sole
individual or group of individuals. The works have been created by their forefathers, and worked
upon by subsequent generations. The work has been subject to constant innovation and
“improvement”. But this improvement takes place in the very course of life, hardly noticeable, but
never recorded and noticed as such, unlike strict parameters of IP. Thus none can be identified as
a sole inventor, author of the intellectual property or the knowledge created. The existing
Intellectual property regime does not provide for the currently visible cultural misappropriation of
imitating songs, dances and practices of the indigenous groups. The IPR regimes are neither
designed nor equipped to cater to the question of cultural dilution and misappropriation. However
it is to be remembered that Intellectual Property is not solely about rewarding the creator or the
inventor, but it also looks at the recognition and respect for the contribution of the human
creators.
The constraints that may be identified in respect of patentability of traditional medicinal knowledge
may be enumerated and elucidated as follows. A substantial collection of traditional medicinal
knowledge is “ancient”, passed down from generation. This property of being ancient and the fact
that it is most likely to be known to most persons in the community, fails to meet the requirement
of novelty and inventive step under patent law in any jurisdiction. There exists the option of
granting petty patents which grant a special treatment to invention with regard to the priority date
and measurement of inventive step. This option was seen to be not very favourable.
Traditional knowledge is held collectively by the community as one whole legal entity. The
invention is not limited to a sole individual or a group of individuals that can be said to be
inventors. The community as whole enjoys the right to enjoy and practice such knowledge. The
lack of an identifiable person, individual, or a definite body or group of individuals makes an
application for a patent under patent laws a difficult task. Patent laws across the globe, and
international conventions and treaties are all centered around the ‘inventor’ and his rights and
obligations under the contract between him and the state with respect to the monopoly right so
granted.
The complexity and cost of drafting and prosecuting patent applications is beyond the means of
the holders of traditional knowledge. that which holders of traditional knowledge can manage and
afford. [6]
Each of these constraints was identified by WIPO in fact-finding missions conducted in 1998 and
1999 on the intellectual property needs and expectations of holders of traditional knowledge.
The UNCTAD also expressed the above-mentioned constraints with respect to the protection of
traditional knowledge in the following terms.:
“While individual TK holders could in theory acquire a patent, it is generally the case that TK is
passed on orally from generation to generation and evolves incrementally. Thus, it would be
difficult to meet the criteria of novelty and inventive step. Second, TK tends to be generated
collectively to the extent that no inventors are identifiable. Indeed the source of much TK cannot
be traced to a specific community or even to a geographical region. Even if these obstacles were
somehow overcome, most traditional communities do not have the resources to file patent
applications or to take legal action to prevent patent infringement.” [7]
Indigenous communities follow an approach different compared to modern society. We as
inhabitants of the developed and developing world refer to knowledge as a means of conversion to
economic prosperity. Indigenous communities take a very traditional approach and believe that the
knowledge, as passed to them through their ancestors is sacred. The knowledge is held in trust till
the lifetime of the individual, which then will be passed to the next in kin, who will also hold it in
trust till it is passed further and so on. The knowledge thus contains a large content of sanctity and
religious significance in addition to custom and tradition. It is pertinent to note that the medicinal
knowledge along with the access to plant and biological resources as whole along with the
ecological ingredients is the component of the knowledge base that is transferred in trust.
Indigenous peoples are the sole guardians of the vast, little –disturbed habitat that modern
scientists depend on more than they realize to regulate water cycles, maintain stability of the
climate, and provide valuable plants, animals and genes. They possess in their ecological
knowledge, an asset of incalculable value: a map to the biological diversity of the earth on which
life depends. Encoded in indigenous languages and customs, and practices may be as much
understanding of nature as is stored in the libraries of modern science.[8]
Traditional healing practices such a Yoga and Tai ji have developed over the years and most often
viewed as an anthropological knowledge base free from commoditization and commercialization.
This makes protection of difficult. It is protected as confidential information by the practitioners.
Most often, an action contrary to this knowledge base in terms of violation is viewed as taboo and
not “infringement of proprietary right” in the legal sense of the term. For Example, Yoga as a
traditional form of healing is practiced in the early hours of the morning. A failure to follow this
regime if constitutes a taboo, will not raise any cause of action in the courts. Against this
backdrop, the very existence of a right in such forms of knowledge is questioned.
In the case of the Kani tribe or for any community in possession of such a knowledge base, the
closely guarded knowledge has been passed on from generation to generation as a spiritual sacred
possession within the members of the community. Indigenous knowledge is essentially embedded
in culture. Culture, being subject to constant change requires a perpetual right against degradation
and appropriation. The protection is sought against misappropriation at all the stages of
development of culture. Today groups afraid of cultural dilution or demise seek to counter with
legal rights that ensure cultural survival with a desire to maintain and cherish the distinctiveness
not just now but for ever. We are all concerned about our identity, whether we belong to the group
of indigenous peoples or otherwise. There is no more legitimate cause and purpose for protection
needed.
Integrated Rights: Traditional Resource Rights
Traditional knowledge in its entirety including traditional medicinal knowledge was sought to be
protected as in Intellectual property right and as a cultural right. Both seemed diametrically
opposite each other, offering little or no relief or redressal to the indigenous communities and
holders of traditional knowledge. Jurists have tried to balance both concepts and derive a novel
method system of protection through the mode of Traditional resource Rights. [9] Traditional
resource rights seek to go beyond the concept of intellectual property rights and try to describe
various rights existing and that can be developed with a view to afford protection to traditional
Knowledge and compensation for use of such knowledge. Traditional resources include plants,
animals, other material objects like tangible and intangible rights. Traditional resource rights inter
alia include, public law rights and customary law defined or accommodated in national and
international laws.
Traditional knowledge rights or traditional resource rights, the panacea to these unresolved
questions runs parallel to the concept of Intellectual property rights protecta the a base of
knowledge, traverses beyond intellectual property rights and embraces the cultural fabric of a
people embodying religion, custom and tradition.
Written By: Pranjal Puranik
Publish Date: 25-Sep-2007

[1 See, Gopalakrishnan, Impact of patent system on traditional knowledge, [1998] Cochin

] University Law Review 219, 220, Also quoted in Christopher Heath, Sabine Weidlich ,
Inellectual Property : Suitable for protecting traditional Medicine, Intellectual Property
Quarterly, 2003.
[2 Gurdial Singh Nijar, TRIPS and Biodiversity. The threat and responses : A third world
] View.
[3 , Ibid p.6
]
[4 Section 102 of the Patent law in the US : Conditions for Patentability; Novelty and Loss
] of Right to Patent
A person shall be entitled to a patent unless --
(a) the invention was known or used by others in this country, or patented or described in
a printed publication in this or a foreign country, before the invention thereof by the
applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign
country or in public use or on sale in this country, more than one year prior to the date of
the application for patent in the United States, or elsewhere.
[5 Leanne M. Fecteau, The Ayahuasca Patent Revocation: Raising questions about current
] US Patent Policy, 2001 by Boston College Third World Law Journal;
[6 1998 and 1999, WIPO conducted nine fact-finding missions to the South Pacific,
] Southern and Eastern Africa, South Asia, North America, Central America, West Africa,
the Arab Countries, South America and the Caribbean on the on the intellectual property
needs and expectations of holders of traditional knowledge. The report on these fact-
finding missions may be found at the WIPO. Also mentioned in Richard Wilder,
Protection of traditional Medicine, 2001, CHM Working paper Series, pg.21.
[7 TD/B/COM.1/EM.13/2, ¶35 (22 August 2000).
]
[8 Alan Thein Durning, Worldwatch Paper112. Guardians of the land and indigenous
] peoples and the health of the earth., December 1992
[9 The concept of Traditional Resource Rights was first conceptualized and elaborated in an
] article by Posey, Traditional Resource Rights: De Facto Self Determination for
Indigenous peoples. Also referred to in Burton Ong, Intellectual Property and Biological
Resources. P.369.
 Title : Protection of Traditional Knowledge Under the Biological Diversity Act,
2002 : A Critical Analysis
Author : Ms. Preetha Sadasivan

Preetha S*

{The paper analyses the provisions of the Biological Diversity Act, 2002 and its efficacy in
protecting the traditional knowledge related to biodiversity. The main thrust of the paper is that
the provisions of the Act are not adequate to protect the interests of the local and indigenous
community.}

Traditional knowledge is commonly referred as any useful information that is passed on

by the members of the society from generation to generation. It develops incrementally,
with each generation adding to the stock of knowledge. Traditional knowledge is
collectively owned and used for the benefit of the community. Protection of traditional
knowledge of the local and indigenous communities seems to be one of the most
complicated issue facing intellectual property regime today.1

The technological developments, particularly in the field of biotechnology have enabled

the development of new products based on traditional knowledge. When patent
protection came to be granted to the new products based on traditional knowledge, the
custodians of traditional knowledge became conscious of the economic potential of their
knowledge.2 Intellectual property system regards traditional knowledge as knowledge in
the public domain . The concepts of 'originality', 'novelty' and 'inventive step' kept
traditional knowledge outside the scope of formal intellectual property system.3 Thus,
while the knowledge base of the community remained without any legal protection, the
creators of new products based on traditional knowledge were afforded protection by the
system. Absence of any legal framework to protect valuable traditional knowledge
facilitated commercial exploitation of the traditional knowledge base.

The development of new products and the new use of existing products is a major threat
to the survival of many of the local and indigenous communities. The primary
motivation for developing countries to protect the rights of the custodians of traditional
knowledge is to improve the livelihoods of traditional knowledge holders and
communities4. Local and indigenous communities depend on traditional knowledge for
their livelihoods and well-being. Even today, many of the local and indigenous
communities in the Asian community meet their basic needs from the products they
manufacture and sell based on their traditional knowledge. According to the World
Health Organization up to 80 per cent of the world's population depends on traditional
medicine for its primary health needs. The poorest segments of developing nations
depend on traditional knowledge for their survival.5 Commercial exploitation of the
traditional knowledge base without sharing the profits arising from such use with the
local and indigenous communities is a violation of their social, economic and cultural
rights.

At the international level the WIPO-UNESCO Model provisions, the ILO Convention
concerning indigenous and tribal people, and the draft UN Convention on Rights of
Indigenous People, 1994 expressed the need for protecting traditional knowledge. The
Convention on Biological Diversity, 19926 which was primarily intended to provide for
the conservation of biological diversity, also acknowledged the rights of the holders of
traditional knowledge. CBD responded to the emerging inequities arising from private
industry's use of biological resources and the knowledge associated with it by
reasserting national sovereignty over such resources. 7 CBD mandates that states shall
respect, preserve and maintain knowledge, innovations and practices of local and
indigenous communities, promote wider application of it with the approval and
involvement of the holders of such knowledge, innovations and practices and encourage
equitable sharing of the benefits arising from the utilization of such knowledge,
innovations and practices.8

As a signatory to the CBD , India enacted the Biological Diversity Act, 2002 to regulate
access to biological resources and the knowledge associated with it .The legislation is
meant to achieve three main objectives namely conservation of biological resources ,
sustainable use of biological resources and equitable sharing of the benefits arising out
of the use of such resources. Protection of traditional knowledge is sought to be
achieved under the Act indirectly through the prevention of piracy of traditional
knowledge by regulating access to biodiversity and knowledge associated with it. Even
though the Act is a pioneering piece of legislation, it has many loopholes that need to be
addressed by a comprehensive sui generis legislation to protect the traditional
knowledge.

The legislation provides for a three tired management structure with the National
Biodiversity Authority9 at the apex level, State Biodiversity Board 10 at the state level
and the Biodiversity Management Committees11 at the local level. NBA shall regulate
access to biological resources and knowledge associated with it by foreigners.12 Prior
approval of NBA is required for applying for any intellectual property right within or
outside India for an invention based on research or information on biological resource
obtained from India. While granting approval NBA is duty bound to secure equitable
sharing of benefits arising out of the use of the accessed biological resources in
accordance with mutually agreed terms between the person applying for such approval,
local bodies concerned and the benefit claimers.13 The Act uses the term 'benefit
claimers' instead of 'local and indigenous communities' and the term has been defined to
mean the conservers of biological resources, their by-products, creators and holders of
knowledge and information relating to the use of such biological resources, innovations
and practices associated with such use and application.14

The sharing of benefits may be in the form of grant of joint ownership of intellectual
property rights to NBA or the benefit claimers, transfer of technology, location of
production, research and development units in such areas which will facilitate better
living standards to the benefit claimers, association of Indian scientists, benefit claimers
and the local people with research and development, setting up venture capital fund for
aiding the cause of benefit claimers and payment of compensation to the benefit
claimers. 15 NBA may withdraw the approval granted for access if the person has
violated the conditions on which access was granted or has failed to comply with the
terms of the agreement.16

Indian citizens and corporations registered in India can use the biological resource and
knowledge associated with it for all purposes after giving intimation to the SBB.17 They
are not bound to seek prior permission from neither the NBA nor the SBB, only an
intimation to SBB is required. The Act allows Indian corporations to use the biological
resources and knowledge associated with it without sharing any benefit arising from its
commercial utilization with the custodians of traditional knowledge. Rather the Act is
silent on whether the SBB should insist for prior informed consent and sharing of
benefits. Thus, the Act indirectly permits the local and indigenous communities to be
exploited by Indian corporations. The local people and communities of the area,
including growers and cultivators of biodiversity, vaids and hakims who have been
practising indigenous medicine are exempted from the obligation to give prior
intimation to the SBB.

The legislation mandates that the NBA and SBB shall be bound by the directions given
by the Central Government and the state governments respectively on questions of
policy18. There is every possibility that NBA and SBB may end up being ineffectual in
carrying out the purposes of the Act.

The Act provides for the constitution of BMC at the local level. NBA and SBB shall
consult the BMC while taking any decision relating to use of biological resources within
their jurisdiction. But the 'consultation' may remain as a mere formality as what is
envisaged in the Act is not a 'prior informed consent'. Further, the Act does not stipulate
that the decision of the BMC shall be binding on NBA and SBB.

The Biological Diversity Rules, 2004 provides that BMC shall consist of a Chairperson
and not more than six persons nominated by the local body, of whom not less than one
third should be women and not less than 18 per cent should belong to the scheduled
castes/scheduled tribes.19 The rules enumerate the functions of BMC .The main function
of the BMC is to prepare People's Biodiversity Register (PBR) in consultation with local
people. The Register shall contain comprehensive information on availability and
knowledge of local biological resources, their medicinal or any other use or any other
traditional knowledge associated with them. BMC shall also give advice on any matter
referred to it by the NBA or SBB. It shall also maintain data about the local vaids and
practitioners using the biological resources.20 The rules have reduced the role of BMC to
that of mere data providers.

No legal protection is granted to the information recorded in the PBRs. There is no

requirement for seeking the consent of the holder of the knowledge for accessing the
information in the PRRs. BMC has not been assigned any role in granting approval for
access to the information in the PBRs. The rules do not facilitate community decision
making. Decision making is highly centralised and even in formulating mutually agreed
terms for benefit sharing the role of BMCs are sidelined. Creation of PBRs will
facilitate the foreign corporations to locate the availability of commercially useful
biological resources and associated knowledge and trade on it through the NBA without
any direct responsibility to the local and indigenous communities.21

The provisions of the Act are not adequate to recognise the local and indigenous
community's sovereignty over the biological resources and the knowledge associated
with it. The national sovereignty approach of the Act needs to be re-examined. It is high
time a new legislation is enacted with adequate provisions to ensure participatory role
for local and indigenous community in decision-making.

_______________________________

* Research Scholar, School of Legal Studies, CUSAT.

1. U.N. Dev. Programme ,Making Global Trade Work For People, 222 (2003),
available at http://www.undp.org/dpa/publications/ globaltrade.pdf (questioning
the relevance of TRIPs for large parts of the Third World); COMM'N ON
INTELLECTUAL PROP.RIGHTS,Integrating Intellectual Prop. Rights& Dev.
Policy ,87 (2002), available at
http://www.iprcommission.org/papers/pdfs/final_report/CIPRfullfinal.pdf
(discussing the treatment of traditional knowledge under existing intellectual
property frameworks).

2. M. Blackney , "Bioprospecting and the protection of Traditional Medical

Knowledge of Indigenous Peoples : An Austarlian Prespetive",[1997] 6 EIPR
298

3. See Dr.N.S.Gopalakrishnan, "Impact of Patent System on Traditional

Knowledge",1998 C.U.L.R. 219.

4. Graham Dutfield , Intellectual property and Biogenetic resources,

Earthscan ,U.K,(2004)

5. United Nations Conference on Trade and Development. (UNCTAD), 2000

6. Hereinafter referred to as CBD

THE INTERNATIONAL DEBATE ON TRADITIONAL

KNOWLEDGE AS PRIOR ART IN THE PATENT SYSTEM:

ISSUES AND OPTIONS FOR DEVELOPING COUNTRIES

BY

MANUEL RUIZ

OCTOBER 2002

The author is a lawyer and currently the Director of the Biodiversity programme of the
Sociedad Peruana de

Derecho Ambiental. The paper was edited by Sisule F. Musungu. The views expressed
are those of the author

and do not necessary reflect those those of CIEL, South Centre or The Rockefeller
Foundatio
Commercialization of traditional medicines
From Wikipedia, the free encyclopedia

(Redirected from Biopiracy)

Contents
[hide]

• 1 Biopiracy and bioprospecting

• 2 Famous cases

o 2.1 The rosy periwinkle

o 2.2 The neem tree

o 2.3 Hoodia

o 2.4 Further cases

• 3 Legal and political aspects

o 3.1 Patent law

o 3.2 Convention on Biological Diversity

(CBD)

o 3.3 Bioprospecting contracts

• 4 Ownership

o 4.1 Ownership rights of national

governments

o 4.2 Ownership rights of local

communities

o 4.3 All humankind as the owner of

biodiversity

o 4.4 Consequentialist arguments

o 4.5 Virtue-based arguments

• 5 Traditional knowledge database

• 6 See also

• 7 References

• 8 Bibliography and resources

• 9 External links

Biopiracy and bioprospecting

 This article may need to be rewritten entirely to comply with
Wikipedia's quality standards. You can help. The discussion page may contain
suggestions. (April 2010)

A white Rosy Periwinkle

Bioprospecting is an umbrella term describing the discovery of new and useful biological mechanisms,
either with or without the help of indigenous knowledge, and with or without compensation.[1] In this way,
bioprospecting includes biopiracy and also includes the search for previously unknown compounds in
organisms that have never been used in traditional medicine.[2]

Biopiracy is a situation where indigenous knowledge of nature is exploited for commercial gain with no
compensation to the indigenous people themselves.[3]Detractors of utilization of natural knowledge such as
Greenpeace[4] claim these practices contribute to inequality between developing countries rich
inbiodiversity, and developed countries hosting companies which engage in biopiracy.

Famous cases
The rosy periwinkle
The rosy periwinkle case dates from the 1950s. The rosy periwinkle, while native to Madagascar, had been
widely introduced into other tropical countries around the world well before the discovery of vincristine. This
meant that researchers could obtain local knowledge from one country and plant samples from another.
The locally known medical properties of the plant were not the same as the medical properties discovered
and commercially used by Eli Lilly[citation needed]. The use of the plant as a cure for diabetes was the original
stimulus for research, but cures for cancer were the most important results. Different countries are reported
as having acquired different beliefs about the medical properties of the plant.[5] The Hodgkin's
Lymphomachemotherapeutic drug vinblastine is also derivable from the rosy periwinkle.[6]
The neem tree

A Neem tree

In 1995 the U.S. Department of Agriculture and a pharmaceutical research firm received a patent on a
technique to extract an anti-fungal agent from the neemtree (Azadirachta indica), which grows
throughout India and Nepal; Indian villagers have long understood the tree's medicinal value. Although the
patent had been granted on an extraction technique, the Indian press described it as a patent on the neem
tree itself; the result was widespread public outcry, which was echoed throughout the developing world.
Legal action by the Indian government followed, with the patent eventually being overturned in 2005.[7][8]

Importantly, the pharmaceutical company involved in the neem case argued that as traditional Indian
knowledge of the properties of the neem tree had never been published in an academic journal, such
knowledge did not amount to "prior art" (prior art is the term used when previously existing knowledge bars
a patent). Public knowledge and public disclosure (including oral or written descriptions) is considered prior
art in most countries.

Hoodia
The Hoodia Succulent

Hoodia, a succulent plant, originates from the Kalahari Desert of South Africa. For generations it has been
known to the traditionally-living San people as anappetite suppressant. In recent years (2004 onwards)
there has been sensationalist media coverage of the plant. Derived products may be introduced into
developed countries to help obesity. The long-term benefits are controversial.

Further cases
The following is a selection of some of the further cases in recent biopiracy studies. Most of them do not
relate to traditional medicines.

 A large selection of African biopiracy cases are discussed at GhanaWeb's Public Agenda (March
31, 2006)

 The case of the Maya people's pozol drink is discussed in The New England Journal of
International and Comparative Law and at Global Exchange

 The case of the Maya and other people's use of Mimosa tenuifolia, including many other such
cases in general are discussed at GRAIN

 The case of the Andean maca radish is discussed in the American University's Trade Environment
Database

 The United Kingdom Select Committee on Environmental Audit 1999; Appendices to the Minutes
of Evidence, Appendix 7: Trade Related Intellectual Property Rights (TRIPs) and Farmers'
Rights interestingly lists and describes the cases of turmeric (India),
[8]
karela (India), quinoa (Bolivia), brazzeinberries (Gabon), and others.

 Captopril

Legal and political aspects

Patent law
One common misunderstanding is that pharmaceutical companies patent the plants they collect. While
obtaining a patent on a naturally occurring organism as previously known or used is not possible, patents
may be taken out on specific chemicals isolated or developed from plants. Often these patents are
obtained with a stated and researched use of those chemicals.[citation needed] Generally the existence, structure
and synthesis of those compounds is not a part of the indigenous medical knowledge that led researchers
to analyze the plant in the first place. As a result, even if the indigenous medical knowledge is taken as
prior art, that knowledge does not by itself make the active chemical compound "obvious," which is the
standard applied under patent law.

In the United States, patent law can be used to protect "isolated and purified" compounds. In 1873, Louis
Pasteur patented a "yeast" which was "free from disease" (patent #141072). Patents covering biological
inventions have been treated similarly. In the 1980 case of Diamond v. Chakrabarty, the Supreme
Court upheld a patent on a bacterium that had been genetically modified to consume petroleum, reasoning
that U.S. law permits patents on "anything under the sun that is made by man." The United States Patent
and Trademark Office (USPTO) has observed that "a patent on a gene covers the isolated and purified
gene but does not cover the gene as it occurs in nature".[9]

Also possible under US law is patenting a cultivar, a new variety of an existing organism. The patent on the
enola bean (now revoked) was an example of this sort of patent. The intellectual propertylaws of the US
also recognize plant breeders' rights under the Plant Variety Protection Act, 7 U.S.C. §§ 2321-2582.[10]

Convention on Biological Diversity (CBD)

Main article: Convention on Biological Diversity

The CBD came into force in 1993. It secured rights to control access to genetic resources for the countries
in which those resources are located. One objective of the CBD is to enable lesser-developed countries to
better benefit from their resources and traditional knowledge. Under the rules of the CBD, bioprospectors
are required to obtain informed consent to access such resources, and must share any benefits with the
biodiversity-rich country. However, some critics believe that the CBD has failed to establish appropriate
regulations to prevent biopiracy. Others claim that the main problem is the failure of national governments
to pass appropriate laws implementing the provisions of the CBD.[11] The CBD has been ratified all
countries in the world except for Andorra, Holy See and United States. The 1994 Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPs) and the 2001 International Treaty on Plant Genetic
Resources for Food and Agriculture are further relevantinternational agreements.

Bioprospecting contracts
The ethical debate has sparked a new branch of international patent and trade law[citation needed].
Bioprospecting contracts lay down the rules, between researchers and countries, of benefit sharing and
can bring royalties to lesser-developed countries. However, the fairness of these contracts has been a
subject of debate. Unethical bioprospecting contracts (as distinct from ethical ones) can be viewed as a
new form of biopiracy.

An extensively discussed example of a bioprospecting contract is the agreement

between Merck and INBio of Costa Rica.[12]

Ownership
This article may contain original research. Please improve it by verifying the
claims made and adding references. Statements consisting only of original
research may be removed. More details may be available on the talk
page. (September 2007)

The rights at issue in the biopiracy debates are primarily ownership rights. Who (if anyone) owns the
Earth's biodiversity?[13] Under what circumstances is it appropriate to talk of 'ownership' of biodiversity, or of
particular examples of it? Various and sometimes inconsistent regional and international laws and
regulations assign ownership rights to many entities. Moreover, regardless of the legal situation, the case
for any party having an ethical right to ownership of biological resources is a separate issue.[citation needed]

Ownership rights of national governments

Under current international law, national governments exercise a degree of physical control over the
biological resources within their country, just as they control mineral rights. However, it is less clear that
governments have the right (or even the power) to control knowledge of the application of biological
resources, nor are governments able in practice to control the extraction of biological resources in small
amounts for research purposes.[citation needed]

An advantage of national government ownership is that some national governments may be strong enough
to defend property rights (e.g. against pharmaceutical corporations or other nations).[citation needed] Among
objections to national government ownership is the fact that there may be conflicts of interest in developing
countries between national governments and local communities. High biodiversity tends to occur in the
least developed regions. National governments tend to represent the more developed and urbanised
populations of a country.[citation needed] Ethnic, historical, and cultural gaps between governmentally well-
represented groups and the populations of the least developed regions are not infrequent. The knowledge
at issue in the biopiracy debates is often the knowledge of local communities, not the knowledge of their
governments.[citation needed]

Ownership rights of local communities

Many groups argue that it is the local communities who possess the traditional biomedical knowledge
should benefit from the commercial use of such knowledge. Ownership rights should be attributed to these
communities in order to safeguard their interests.[citation needed]

One argument against this is that patent and copyright law are widely implemented as temporary legal
mechanisms. Under most intellectual property laws, patents and copyrights expire. In many cases where
local communities have been using traditional medicines for generations, these kinds of intellectual
property rights would have expired.[citation needed] Many such indigenous groups maintain that their knowledge
of the medicines should be protected on an international scale according to each group's internal
intellectual property laws (see Indigenous intellectual property).

All humankind as the owner of biodiversity

A more humanistic view of this debate is the claim that biodiversity is something that should be held in
common by people in general. Under this view, any and all people who have a need for an advantage
reaped by scientific exploration should be granted access to it.

Consequentialist arguments
Consequentialist arguments typically consider the maximisation of utility or other benefits.
In the case of the Rosy Periwinkle, the most noticeable consequence of the plant's widespread medicinal
use is the numbers of cancer patients whose lives it saved. Most ownership rights entail the right to refuse
certain uses, and a Consequentialist might conclude that the benefit of saving people's lives should
outweigh and supersede property rights.[citation needed] In the case of the Enola bean, however,
Consequentialist arguments favour the interests of Mexican bean farmers.[citation needed]

An alternative approach to the utilitarian Consequentialist argument assesses claims of biopiracy by

examining the economic incentives underlying each step of the inventive transformation of genetic
information into commercially valuable applications. In this reasoning, the benefit of awarding a
temporary patent as an incentive for parties that use this information to develop a medicine that can be
widely distributed outweighs claims to compensation for alleged biopiracy, especially given the premise that
most ethnobiological information already lies in the public domain.[14]

Virtue-based arguments
Many virtue-based arguments hold that there is something fundamentally and intuitively offensive or wrong
about outsiders using traditional knowledge from indigenous communities to make a profit without
compensating the communities in question. Virtue-based debates underlie many of this controversy's
ethical issues. Many virtue-based approaches recognize the importance of human knowledge of
biodiversity while encouraging some kind of exchange between bioprospectors and indigenous peoples.
[citation needed]

Traditional knowledge database

In response to biopiracy threats faced in cases of turmeric, neem and basmati rice, Government of India
has been translating and publishing ancient manuscripts containing old remedies in electronic form, and in
2001 the Traditional Knowledge Digital Library was set up as repository of 1200 formulations of various
systems of Indian medicine, such as Ayurveda, Unani and Siddha.[8][15] The texts are being recorded
from Sanskrit, Urdu, Persian and Arabic; made available to patent offices in English, German, French,
Japanese and Spanish. The aim is to protect India's heritage from being exploited by foreign companies.
Hundreds of Yoga poses are also kept in the collection. The project has been criticized by a spokesman for
the pharmaceutical industry as "a solution in search of a problem".[16]The library has also signed
agreements with leading international patent offices such as European Patent Office (EPO), United
Kingdom Trademark & Patent Office (UKPTO) and the United States Patent and Trademark Office to
protect traditional knowledge from biopiracy as it allows patent examiners at International Patent Offices to
access TKDL databases for patent search and examinations purposes.[8][17][18]

See also

 Intellectual capital

 List of environment topics

 Natural capital
  Biological patent

 Traditional knowledge

 Piracy

 Intellectual property

 Plant breeders' rights

 Bioethics

References

1. ^ http://www.oha.org/pdf/bioprospecting/20071130/definition.doc

2. ^ http://www.scq.ubc.ca/bioprospecting-a-new-western-blockbuster-after-the-gold-rush-the-

gene-rush/

3. ^ http://www.thefreedictionary.com/biopiracy

4. ^ http://www.greenpeace.org/australia/issues/GE/overview/causes/corporate/patents-and-

biopiracy

5. ^ Smithsonian Centre for Education and Museum Studies, A traditional brew leads to cancer

cure.

6. ^ Karasov, C. (2001). "Who Reaps the Benefits of Biodiversity?". Environmental Health

Perspectives (Environmental Health Perspectives, Vol. 109, No. 12) 109 (12): A582–

A587. doi:10.2307/3454734.JSTOR 3454734. PMC 1240518. PMID 11748021.

7. ^ Vandana Shiva, The neem tree - a case history of biopiracy

8. ^ a b c d "Know Instances of Patenting on the UES of Medicinal Plants in India". PIB, Ministry of

Environment and Forests. May 6, 2010. Retrieved 21 May 2010.

9. ^ US Patent and Trademarks Office (2001), Utility Examination Guidelines

10. ^ Jim Chen (2005). "The Parable of the Seeds: Interpreting the Plant Variety Protection Act in

Furtherance of Innovation Policy". Notre Dame Law Review 81: 105–166.

11. ^ International Chamber of Commerce: Access and benefit-sharing; protection of traditional

knowledge [1]

12. ^ John Eberlee (2000), Assessing the Benefits of Bioprospecting in Latin America

13. ^ Paul Gepts (2004). "Who Owns Biodiversity, and How Should the Owners Be

Compensated?". Plant Physiology 134 (4): 1295–

1307. doi:10.1104/pp.103.038885. PMC 419806. PMID 15084724.

14. ^ Jim Chen (2006). "There's No Such Thing as Biopiracy ... And It's a Good Thing

Too". McGeorge Law Review 37.

15. ^ Traditional Knowledge Digital Library website.

16. ^ John Lancaster (2006), Age-old cures go online

17. ^ "CSIR wing objects to Avesthagen patent claim". Live Mint. Apr 28 2010.
 18. ^ "India Partners with US and UK to Protect Its Traditional Knowledge and Prevent Bio-Piracy".

Press Information Bureau, Ministry of Health and Family Welfare. April 28, 2010. Retrieved 25 May

2010.

Bibliography and resources

 The Secretariat of the Convention on Biological Diversity (United Nations Environment

Programme) maintains an information centre which as of April 2006 lists some 3000 "monographs,
reports and serials".

 Secretariat of the Convention on Biological Diversity (United Nations Environment

Programme), Bibliography of Journal Articles on the Convention on Biological Diversity (March 2006).
Contains references to almost 200 articles. Some of these are available in full text from the CBD
information centre.

 Shiva, Vandana (1997). Biopiracy : The Plunder of Nature and Knowledge. South End Press.

 Jim Chen (2005). "Biodiversity and Biotechnology: A Misunderstood Relation". Michigan State Law
Review 2005: 51–102.

External links

 Out of Africa: Mysteries of Access and Benefit-Sharing - a 2006 report on biopiracy in Africa
by The Edmonds Institute

 Cape Town Declaration - Biowatch South Africa

 Genetic Resources Action International (GRAIN)

 Third World Network (TWN)

 Indian scientist denies accusation of biopiracy - SciDev.Net

 African 'biopiracy' debate heats up - SciDev.Net

 Bioprospecting: legitimate research or 'biopiracy'? - SciDev.Net

 ETC Group papers on Biopiracy : Topics include: Monsanto’s species-wide patent on all
genetically modified soybeans (EP0301749); Synthetic Biology Patents (artificial, unique life forms);
Terminator Seed Technology; etc...

 Coalition Against Biopiracy: Captain Hook Awards and Cog

Awards http://www.captainhookawards.org/

 Richard Stallman on Biopiracy

 Biopirates in the Americas - By Carmelo Ruiz-Marrero, AlterNet (June 3, 2003).

 The US Patent System Legalizes Theft and Biopiracy - By Vandana Shiva.

 Who Owns Biodiversity, and How Should the Owners Be Compensated?, Plant Physiology, April
2004, Vol. 134, pp. 1295–1307

 Review article on bioprospecting from The Science Creative Quarterly

  Heald, Paul J. (2001), "'Your Friend in the Rain Forest': An Essay on the Rhetoric of Biopiracy" .
Available at SSRN: http://ssrn.com/abstract=285177 or DOI: 10.2139/ssrn.285177

 Traditional Ecological Knowledge Prior Art Database

 An extensive master thesis on biopiracy by Johan Ragnar, Sweden

Categories: Commercialization of traditional medicines | Ethically disputed business practices

Traditional knowledge
From Wikipedia, the free encyclopedia
This article may be unbalanced towards certain viewpoints. Please improve the article by adding
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Please help improve this article by adding reliable references. Unsourced material may be challenged and removed. (April 2009)

Intellectual property law

Primary rights

Copyright • Authors' rights

Related rights • Moral rights

Patent • Utility model

Trademark

Geographical indication

Trade secret

Sui generis rights

Database right

Indigenous intellectual property

Industrial design right

Mask work • Plant breeders' rights

Supplementary protection certificate

Related topics

Criticism • Orphan works

Public domain • more

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v·d·e

Traditional knowledge (TK), indigenous knowledge (IK), traditional environmental knowledge (TEK)
and local knowledge generally refer to the long-standing traditions and practices of
certain regional, indigenous, or local communities. Traditional knowledge also encompasses the wisdom,
knowledge, and teachings of these communities. In many cases, traditional knowledge has been orally
passed for generations from person to person. Some forms of traditional knowledge are expressed
through stories, legends, folklore, rituals, songs, and even laws. Other forms of traditional knowledge are
often expressed through different means.[1]

Contents
[hide]

• 1 Characteristics

• 2 Property rights

o 2.1 Public domain

o 2.2 Indigenous intellectual property

o 2.3 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

o 2.4 The Convention on Biological Diversity (CBD)

o 2.5 Commons and intellectual property

o 2.6 Government of India efforts

• 3 See also

• 4 References

• 5 External links

[edit]Characteristics

Traditional knowledge typically distinguishes one community from another. For some communities,
traditional knowledge takes on a personal and spiritualmeaning. Traditional knowledge can also reflect a
community's interests. Some communities depend on their traditional knowledge for survival. This is
particularly true of traditional environmental knowledge, which refers to a "particular form of place-based
knowledge of the diversity and interactions among plant and animal species, landforms, watercourses, and
other qualities of the biophysical environment in a given place" (Peña, 2005, p. 198). An example of a
society with a wealth of TEK is the South American Kayapo people, who have developed an extensive
classification system of ecological zones of the Amazonian tropical savannah (i.e., campo / cerrado) to
better manage the land (Posey, 2008, p. 90).
Cosmological connections and differences in worldview distinguish "traditional knowledge" from "local
knowledge". Social scientists often place knowledge within a naturalistic framework, and emphasize the
gradation of recent knowledge into knowledge acquired over many generations. These accounts use terms
like "adaptively acquired knowledge", "socially constructed knowledge," and other terms that emphasize
the social aspects of knowledge. Local knowledge and traditional knowledge may be thought of as
distinguished by the length of time they have existed - decades to centuries versus millennia. A large
number of scholarly studies in the naturalistic tradition demonstrate that traditional knowledge is not a
natural category, and may reflect powerstruggles and relationships for land, resources and social
control than adherence to a claimed ancestry or heritage.

Traditional knowledge, on the other hand, may be perceived very differently by indigenous and local
communities themselves. The knowledge of indigenous and local communities is often embedded in
a cosmology, and the distinction between "intangible" knowledge and physical things is often blurred.
Indigenous peoples often say that "our knowledge is holistic, and cannot be separated from our lands and
resources". Traditional knowledge in thesecosmologies is inextricably bound to ancestors, and ancestral
lands. Knowledge may not be acquired by naturalistic trial and error, but through directrevelation through
conversations with "the creator", spirits, or ancestors. As Chamberlin (2003) writes of a Gitksan elder
from British Columbia confronted by a government land claim: "If this is your land," he asked, "where are
your stories?"

Indigenous and local communities often do not have strong traditions of ownership over knowledge that
resemble the modern forms of private ownership. Many have clear traditions of custodianship over
knowledge, and customary law may guide who may use different kinds of knowledge at particular times
and places, and obligations that accompany the use of knowledge. From their perspective,
misappropriation and misuse of knowledge may be offensive to traditions, and may have spiritual and
physical repercussions in their cosmological systems. Subsequently, indigenous and local communities
argue that others' use of their traditional knowledge warrants respect and sensitivity. Critics of "traditional
knowledge", however, maintain that such demands for "respect" are really an attempt to prevent
unsubstantiated beliefs from being subjected to the same scrutiny as other knowledge claims. This has
particular significance for environmental management because the spiritual component of "traditional
knowledge" can be used to justify any activity, including the unsustainable harvesting of resources.

[edit]Property rights
Buddhist monk Geshe Konchog Wangdu reads Mahayana sutras from an old woodblock copy of the Tibetan Kanjur.

Recently, international attention has turned to intellectual property laws to preserve, protect, and promote
their traditional knowledge. The reasons for this are complex. In 1992, the Convention on Biological
Diversity (CBD) recognized the value of traditional knowledge in protecting species, ecosystems and
landscapes, and incorporated language regulating access to it and its use (discussed below). It soon
became apparent that implementing these provisions would require that international intellectual property
agreements would need to be revised to accommodate them.

This became even more pressing with the adoption of the World Trade Organization Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPs), which established rules for creating and protecting
intellectual property that could be interpreted to contradict the agreements made under the CBD. In
response, the states who had ratified the CBD requested the World Intellectual Property
Organization (WIPO) to investigate the relationship between intellectual property rights, biodiversity and
traditional knowledge. WIPO began this work with a fact finding mission in 1999. Considering the issues
involved with biodiversity and the broader issues in TRIPs (involving all forms of cultural expressions, not
just those associated with biodiversity - including traditional designs, music, songs, stories, etc.), WIPO
established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore (IGC-GRTKF).

The period of the early 1990s to the Millennium was also characterized by the rapid rise in global civil
society. The high-level Brundtland Report (1987) recommended a change in development policy that
allowed for direct community participation and respected local rights and aspirations. Indigenous peoples
and others had successfully petitioned the United Nations to establish a Working Group on Indigenous
Populations that made two early surveys on treaty rights and land rights. These led to a greater public and
governmental recognition of indigenous land and resource rights, and the need to address the issue of
collective human rights, as distinct from the individual rights of existing human rights law.

The collective human rights of indigenous and local communities has been increasingly recognized - such
as in the International Labor Organization (ILO)Convention 169 (1989) and the Declaration on the Rights of
Indigenous Peoples (2007). The Rio Declaration (1992), endorsed by the presidents and ministers of the
majority of the countries of the world, recognized indigenous and local communities as distinct groups with
special concerns that should be addressed by states.

Initial concern was over the territorial rights and traditional resource rights of these communities.
Indigenous peoples soon showed concern for the misappropriation and misuse of their "intangible"
knowledge and cultural heritage. Indigenous peoples and local communities have resisted, among other
things: the use of traditional symbols and designs as mascots, derivative arts and crafts; the use or
modification of traditional songs; the patenting of traditional uses of medicinal plants; and the copyrighting
and distribution of traditional stories.

Indigenous peoples and local communities have sought to prevent the patenting of traditional knowledge
and resources where they have not given express consent. They have sought for greater protection and
control over traditional knowledge and resources. Certain communities have also sought to ensure that
their traditional knowledge is used equitably - according to restrictions set by their traditions, or requiring
benefit sharing for its use according to benefits which they define.

Three broad approaches to protect traditional knowledge have been developed. The first emphasizes
protecting traditional knowledge as a form of cultural heritage. The second looks at protection of traditional
knowledge as a collective human right. The third, taken by the WTO and WIPO, investigates the use of
existing or novel sui generis measures to protect traditional knowledge.

Currently, only a few nations offer explicit sui generis protection for traditional knowledge. However, a
number of countries are still undecided as to whether law should give traditional knowledge deference.
Indigenous peoples have shown ambivalence about the intellectual property approach. Some have been
willing to investigate how existing intellectual property mechanisms (primarily: patents, copyrights,
trademarks and trade secrets) can protect traditional knowledge. Others believe that an intellectual
property approach may work, but will require more radical and novel forms of intellectual property law ("sui
generis rights"). Others believe that the intellectual property system uses concepts and terms that are
incompatible with traditional cultural concepts, and favors the commercialization of their traditions, which
they generally resist. Many have argued that the form of protection should refer to collective human rights
to protect their distinct identities, religions and cultural heritage.

[edit]Public domain
Hansel and Gretel is a fairy tale of Germanic origin, recorded by theBrothers Grimm in 1812. The tale has been adapted
to various media, most notably the opera Hänsel und Gretel(1893) by Engelbert Humperdinck and a stop-motion
animated feature film based on the opera. Artwork by Arthur Rackham, 1909

Literary and artistic works based upon, derived from or inspired by traditional culture or folklore may
incorporate new elements or expressions. Hence these works may be "new" works with a living and
identifiable creator, or creators. Such contemporary works may include a new interpretation, arrangement,
adaptation or collection of pre-existing cultural heritage that is in the public domain. Traditional culture or
folklore may also be "repackaged" in digital formats, or restorationand colorization. Contemporary and
tradition based expressions and works of traditional culture are generally protected under existing copyright
law, a form of intellectual property law, as they are sufficiently original to be regarded as "new" upon
publication. Once the intellectual property rights afforded to these new works of traditional knowledge
expire, they fall into the public domain.[2]

The public domain, as defined in the context of intellectual property rights, is not a concept recognised by
indigenous peoples. As much of traditional knowledge has never been protected under intellectual property
rights, they can not be said to have entered any public domain. On this point the Tulalip
Tribes ofWashington state has commented that "...open sharing does not automatically confer a right to
use the knowledge (of indigenous people)... traditional cultural expressions are not in the public domain
because indigenous peoples have failed to take the steps necessary to protect the knowledge in the
Western intellectual property system, but from a failure of governments and citizens to recognise and
respect the customary laws regulating their use".[2]

[edit]Indigenous intellectual property

Main article: Indigenous intellectual property

Indigenous intellectual property is an umbrella legal term used in national and international forums to
identify indigenous peoples' special rights to claim (from within their own laws) all that their indigenous
groups know now, have known, or will know.[3] It is a concept that has developed out of a
predominantly westernlegal tradition, and has most recently been promoted by the World Intellectual
Property Organisation, as part of a more general United Nations push [4] to see the diverse wealth of this
world's indigenous, intangible cultural heritage better valued and better protected against probable,
ongoing misappropriation and misuse.[5]

In the lead up to and during the United Nations International Year for the World's Indigenous Peoples
(1993)[6] then during the following United Nations Decade of the World's Indigenous Peoples (1995–2004)
[4]
a number of conferences of both indigenous and non-indigenous specialists were held in different parts
of the world, resulting in a number of declarations and statements identifying, explaining, refining, and
defining 'indigenous intellectual property'.[7][8]

[edit]Agreement on Trade-Related Aspects of Intellectual Property Rights

(TRIPS)
Article 27. 3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) sets out
certain conditions under which certain biological materials or intellectual innovations may be excluded from
patenting. The Article also contains a requirement that Article 27 be reviewed. In the TRIPs-related Doha
Declaration of 2001, Paragraph 19 expanded the review to a review of Article 27 and the rest of the TRIPs
agreement to include the relationship between the TRIPS Agreement and the 1992 Convention on
Biological Diversity (CBD) and the protection of traditional knowledge and folklore.

[edit]The Convention on Biological Diversity (CBD)

The Convention on Biological Diversity (CBD), signed at the United Nations Conference on Environment
and Development (UNCED) in 1992, was the first international environmental convention to develop
measures for the use and protection of traditional knowledge, related to the conservation and sustainable
use of biodiversity. By 2006, 188 had ratified the Convention and agreed to be bound by its provisions, the
largest number of nations to accede to any existing treaty (the United States is one of the few countries that
has signed, but not ratified, the CBD). Significant provisions include:

Article 8. In-situ Conservation Each Contracting Party shall, as far as possible and as appropriate: (a)... (j)
Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of
indigenous and local communities embodying traditional lifestyles relevant for the conservation and
sustainable use of biological diversity and promote their wider application with the approval and
involvement of the holders of such knowledge, innovations and practices and encourage the equitable
sharing of the benefits arising from the utilization of such knowledge, innovations and practices Article 10.
Sustainable Use of Components of Biological Diversity Each Contracting Party shall, as far as possible and
as appropriate: (a)... (c) Protect and encourage customary use of biological resources in accordance with
traditional cultural practices that are compatible with conservation or sustainable use requirements
The interpretation of these provisions has been elaborated through decisions by the parties (ratifiers of the
Convention) (see the Convention on Biological Diversity Handbook, available free in digital format from the
Secretariat).

The parties to the Convention set a 2010 target to negotiate an international legally-binding regime on
access and benefit sharing (ABS) at the Eighth meeting (COP8), 20–31 March 2006 in Curitiba, Brazil. The
ABS negotiations will address inter-governmental obligations related to genetic resources, and these will
involve measures related to the rights of indigenous and local communities to control access to and derive
benefits from the use of genetic resources and associated traditional knowledge.

At the Convention on Biological Diversity meeting, in Buenos Aires, in 1996, emphasis is put on local
knowledge. Key players, such as local communities and indigenous peoples, must be recognized by
States, and given back their sovereignty over the biodiversity of their territories, so that they can continue
protecting it.[9]

[edit]Commons and intellectual property

Recently, traditional knowledge has been drawn into the debate related to access to medicines, access to
food, the need for poverty alleviation, and related issues that affect the livelihoods and welfare of people
worldwide. It has been argued that traditional knowledge is an important source of health security, food
security and livelihood security for the world's poor. As such, it has been argued that the benefits of sharing
and actively disseminating traditional knowledge outweigh the benefits of protection and recognition of
ownership.

The Creative Commons, with its roots in the open software movement, the literary arts, the open access
movement in science and the humanities, and in the media, arts, entertainment and communications
communities, has also proposed that traditional knowledge is an essential and public source of cultural
creativity. Part of the debate involves the question of whether or not traditional knowledge is part of the
public sphere, national commons, or global commons as part of a "common heritage of mankind". There is
no common indigenous and local community position on issues of the "common heritage of mankind" or the
"global public good". Indigenous peoples and local communities have shared much of their knowledge and
resources with the global community and many have traditions of sharing. Healers, in general, have
spiritual obligations to heal the sick and have shared their healing knowledge. Indigenous peoples have
strong traditions of reciprocity, that is people's informal exchange of goods and labour. Much of the
historical appropriation and use of traditional knowledge has not occurred with reciprocity. Though
traditional knowledge and resources have made contributions to the welfare of humankind as the basis of
much of the world's food system and naturally-derived medicines.

[edit]Government of India efforts

In 2001, Government of India, set up the Traditional Knowledge Digital Library (TKDL) as repository of
1200 formulations of various systems of Indian medicine, such as Ayurveda, Unani and Siddha and
1500 Yoga postures (asanas), translated into five languages — English, German, French, Spanish and
Japanese.[10][11] India has also signed agreements with the European Patent Office (EPO),United Kingdom
Trademark & Patent Office (UKPTO) and the United States Patent and Trademark Office to
reduce commercialization of traditional medicines by giving patent examiners at InternationalPatent
Offices access to the TKDL database for patent search and examinations purposes.[11][12][13]

IPR Policy of Kerala Govt.(India) - Intellectual Property Rights (IPRs) Policy for Kerala released in
2008 [14], proposes adoption of the concepts ‘knowledge commons’ and ‘commons licence’ for the
protection traditional knowledge. The chief architects of the Policy are Prof. Prabhat Patnaik and Mr. R.S.
Praveen Raj. The policy advises to put all the traditional knowledge to the realm of “knowledge commons”
and not to public domain. While codification of TK in digital libraries and sharing the same with patent
offices is a viable solution to direct misappropriation, it is feared that it may provide an opportunity for
capitalists to effect private appropriation by making cosmetic improvements on such traditional knowledge
that is not accessible otherwise as confidentiality cannot be maintained by patent Offices when TKDL is
treated as prior art - says R.S. Praveen Raj [15]

[edit]See also

 Biopiracy

 Convention on Biological Diversity

 Ethnoastronomy

 Ethnobiology

 Ethnobotany

 Ethnoecology

 Ethnomathematics

 Ethnomedicine

 Ethnopharmacy

 Ethnoscience

 Ethnozoology

 Indigenous intellectual property

 Indigenous peoples

 Intangible Cultural Heritage

 Intellectual property

 Inuit Qaujimajatuqangit (traditional knoweledge in Arctic Canada)

 Sui generis protection

 Traditional medicine

 Traditional knowledge GIS

 Traditional Ecological Knowledge

 World Intellectual Property Organization (WIPO)

  Yoga piracy

[edit]References

1. ^ Acharya, Deepak and Shrivastava Anshu (2008): Indigenous Herbal Medicines: Tribal

Formulations and Traditional Herbal Practices, Aavishkar Publishers Distributor, Jaipur- India. ISBN

9788179102527. pp 440

2. ^ a b Graber, Christoph Beat; and Mira Burri Nenova (2008). Intellectual Property and

Traditional Cultural Expressions in a digital environment. Edward Elgar Publishing.

pp. 174. ISBN 1847209211, 9781847209214.

3. ^ RAINFOREST ABORIGINAL NETWORK (1993) Julayinbul: Aboriginal Intellectual and

Cultural Property Definitions, Ownership and Strategies for Protection. Rainforest Aboriginal Network.

Cairns. Page 65

4. ^ a b OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

(2007). "Indigenous peoples" (WEB PAGE). Office of the United Nations High Commissioner of Human

Rights. Geneva. Archived from the original on 2007-11-07. Retrieved 2007-11-29.

5. ^ DODSON, Page 12.

6. ^ WATSON, Irene (1992). "1993: International Year for Indigenous Peoples". Aboriginal Law

Bulletin. AustLII. Retrieved 2007-11-29.

7. ^ WORLD INTELLECTUAL PROPERTY ORGANISATION (2001)

8. ^ http://www.indigenouspeoplesissues.com/index.php?

option=com_search&areas=content&searchphrase=all&searchword=TEK Indigenous People and

Traditional Knowledge: Resources

9. ^ The CBD: Local knowledge systems at the heart of international debates, B. Roussel,

Synthèse, n° 2, 2003, Institute for Sustainable Development and International Relations. [1]

10. ^ Traditional Knowledge Digital Library website.

11. ^ a b "Know Instances of Patenting on the UES of Medicinal Plants in India". PIB, Ministry of

Environment and Forests. May 6, 2010. Retrieved 21 May 2010.

12. ^ "CSIR wing objects to Avesthagen patent claim". Live Mint. April 28, 2010.

13. ^ "India Partners with US and UK to Protect Its Traditional Knowledge and Prevent Bio-Piracy".

Press Information Bureau, Ministry of Health and Family Welfare. April 28, 2010. Retrieved 25 May

2010.

14. ^ "IPRs policy proposes ‘knowledge commons'". The Hindu (Chennai, India). 28 June 2008.

15. ^ http://www.businessline.in/cgi-bin/print.pl?

file=2010012551041500.htm&date=2010/01/25/&prd=bl

[edit]External links
 This article's use of external links may not follow Wikipedia's policies or guidelines. Please improve
this article by removing excessive and inappropriate external links. (August 2010)

 UNEP Indigenous Knowledge Website

 UNEP Indigenous People's Website

 "Traditional Knowledge" on the WIPO web site

 CBD Article 8(j): Traditional Knowledge, Innovations and Practices

 Convention on Biological Diversity Handbook, 3rd ed.

 World Bank's Indigenous Knowledge (IK) Program's website

 WTO: TRIPs Article 27.3b, traditional knowledge, biodiversity

 United Nations University's "Traditional Knowledge Bulletin"

 International Workshop on Free, Prior and Informed Consent and Indigenous Peoples

 Call of the Earth / Llamado de la Tierra

 Statement by the Tulalip Tribes of Washington on Folklore, Indigenous Knowledge, and the Public
Domain, July 09, 2003

 IPRs Online: Traditional Knowledge

 Linking Science and Local Knowledge

 Intellectual Property Rights, Open Source Methods and Traditional Knowledge in Developing
Countries

 Anti-colonial discourse and indigenous knowledges

 Traditional ecological knowledge handbook : a training manual and reference guide for designing,
conducting, and participating in research projects using traditional ecological knowledge / prepared by
Rita A. Miraglia. Hosted by Alaska State Publications Program.

 Research article by Terra Nuova on "Preservation and maintenance of biological diversity related
knowledge of indigenous diversity and local communities with traditional lifestyles Bony Forest, Ijara
District"

Categories: Commercialization of traditional medicines | History of science | Indigenous

peoples | Intellectual property law | Oral trad
 Bio-piracy of Traditional Knowledge
Introduction

Protecting Codified TK

TKDL – A tool for prevention of misappropriation of TK

Annex. 1

-Turmeric (Curcuma longa Linn.)

-Neem (Azadirachta indica A. Juss.)
-Basmati Rice (Oryza sativa Linn.)
-Kava (Piper methysticum Forster)
-Ayahuasca (Banisteriopsis caapi Mort.)
-Quinoa (Chenopodium quinoa Willd.)
-Hoodia (Hoodia gordonii (Masson) Sweet ex Decne)
-Other examples

Introduction
Traditional knowledge has always been an easily accessible treasure and thus has been
susceptible to misappropriation. The traditional knowledge, particularly, related to the
treatment of various diseases has provided leads for development of biologically active
molecules by the technology rich countries. In other words, traditional knowledge is being
exploited for bio-prospecting.Also Traditional knowledge is often misappropriated,
because it is conveniently assumed that since it is in public domain, communities have
given up all claims over it. Traditional Knowledge includes both the codified
(documented) as well as non-codified information (not documented but may be orally
transmitted).

Bio-piracy of codified Indian traditional knowledge continues, since, this information

exists in regional languages, and there exists a language barrier due to which the patent
offices are unable to search this information as prior art, before granting patents.
Formulations used for the treatment of human ailments from traditional knowledge are
time-tested since they have been in practice for centuries. The reliability of the traditional
medicine systems coupled with the absence of such information with patent offices,
provides an easy opportunity for interlopers for getting patents on these therapeutic
formulations derived from traditional medicine systems.

Misappropriations of Traditional Knowledge

The grant of patents on non-patentable knowledge (related to traditional medicines),
which is either based on the existing traditional knowledge of the developing world, or a
minor variation thereof, has been causing a great concern to the developing world. Some
of the examples given in Annex. 1 illustrate the bio-piracy of traditional knowledge and in
many of these cases the country had to fight for revocation of the granted patents,
Revocation, may not be a feasible option possible for all the patents taken on the
traditional knowledge since it involves huge costs and time.

Protecting Codified Traditional Knowledge

Patent examiners, in the international patent offices, while examining the patentability of
any claimed subject matter, use available resources for searching the appropriate non-
patent literature sources. Patent literature, is usually wholly contained in several
distinctive databases and can be more easily searched and retrieved whereas non-patent
literature prior art is often buried somewhere in the many and diverse sources.
Therefore, a need was felt to create more easily accessible non-patent literature
databases on traditional knowledge of India.

Traditional Knowledge Digital Library - A tool for

prevention of misappropriations of traditional knowledge

TKDL targets Indian Systems of Medicine, viz., Ayurveda, Unani, Siddha and Yoga
available in public domain. This is being documented by sifting and collating the
information on traditional knowledge from the existing literature existing in local
languages such as Sanskrit, Urdu, Arabic, Persian and Tamil in digitized format, which
will be available in five international languages which are English, German, Spanish,
French and Japanese. Traditional Knowledge Resource Classification (TKRC), an
innovative structured classification system for the purpose of systematic arrangement,
dissemination and retrieval was evolved for about 5,000 subgroups against few
subgroups available in International Patent Classification (IPC), related to medicinal
plants. The information is being structured under section, class, subclass, group and
subgroup as per the International Patent Classification (IPC) for the convenience of its
use by the international patent examiners. Information comprising about 2 lakh
formulations has been transcribed for realizing the objective of TKDL Project.

Each Sloka is read and converted into a structured language using Traditional Knowledge
Resource Classification by subject (Ayurveda, Unani, Siddha or Yoga) experts. The codes
are then filled into the data entry screen. The Slokas are also saved in the database. The
translated version of all the TKRC codes is ported in the database. The abstraction is
done by the subject experts. The codes once saved in meta data directory are converted
in different languages based on Unicode technology. The formulations are presently being
converted into English, German, French Japanese and Spanish languages. The converted
format of the formulation is readable and can be understood by a layman though it is
targeted towards a patent examiner.

TKDL software with its associated classification system i.e., TKRC converts text in local
languages into multiple languages as mentioned above. It may be noted that the
software does not transliterate, rather it does a knowledge-based conversion, where data
abstracted once is converted into several languages by using Unicode, Metadata
methodology. Software also converts traditional terminology into modern terminology,
for example, Jwar to fever, Turmeric to Curcuma longa, Mussorika to small pox etc.

TKDL includes a search interface providing full text search and retrieval of traditional
knowledge information on IPC and keywords in multiple languages. The search features
include single or multiple word searches, complex Boolean expression search, Proximity
search, Field search, Phrase search, etc in the form of simple and advance search
options. Simple search lets the user search a combination of keywords. Advance search
lets the user search using Boolean expressions, using the expressions like “near”, “and”,
“and not”. Searches are also available on IPC and TKRC codes.

TKDL acts as a bridge between formulations existing in local languages and a Patent
Examiner at a global level, since the database will provide information on modern as well
as local names in a language and format understandable to Patent Examiners. It is
expected that the issue of the gap on lack of access to prior art traditional knowledge
shall get addressed.

Annex. 1

Some examples of bio-piracy of traditional knowledge

Turmeric (Curcuma longa Linn.)

The rhizomes of turmeric are used as a spice for flavouring Indian cooking. It also has
properties that make it an effective ingredient in medicines, cosmetics and dyes. As a
medicine, it has been traditionally used for centuries to heal wounds and rashes.

In 1995, two expatriate Indians at the University of Mississippi Medical Centre (Suman K.
Das and Hari Har P. Cohly) were granted a US patent (no.5, 401,504) on use of turmeric
in wound healing. The Council of Scientific & Industrial Research (CSIR), India, New Delhi
filed a re-examination case with the US PTO challenging the patent on the grounds of
existing of prior art. CSIR argued that turmeric has been used for thousands of years for
healing wounds and rashes and therefore its medicinal use was not a novel invention.
Their claim was supported by documentary evidence of traditional knowledge, including
ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical
Association. Despite an appeal by the patent holders, the US PTO upheld the CSIR
objections and cancelled the patent. The turmeric case was a landmark judgment case as
it was for the first time that a patent based on the traditional knowledge of a developing
country was successfully challenged. The US Patent Office revoked this patent in 1997,
after ascertaining that there was no novelty; the findings by innovators having been
known in India for centuries.

Neem (Azadirachta indica A. Juss.)

Neem extracts can be used against hundreds of pests and fungal diseases that attack
food crops; the oil extracted from its seeds can be used to cure cold and flu; and mixed
in soap, it provides relief from malaria, skin diseases and even meningitis. In 1994,
European Patent Office (EPO) granted a patent (EPO patent No.436257) to the US
Corporation W.R. Grace Company and US Department of Agriculture for a method for
controlling fungi on plants by the aid of hydrophobic extracted Neem oil. In 1995, a
group of international NGOs and representatives of Indian farmers filed legal opposition
against the patent. They submitted evidence that the fungicidal effect of extracts of
Neem seeds had been known and used for centuries in Indian agriculture to protect
crops, and therefore, was unpatentable. In 1999, the EPO determined that according to
the evidence all features of the present claim were disclosed to the public prior to the
patent application and the patent was not considered to involve an inventive step. The
patent granted on was Neem was revoked by the EPO in May 2000. EPO, in March 2006,
rejected the challenge made in 2001 by the USDA and the chemicals multinational, W. R.
Grace to the EPO’s previous decision to cancel their patent on the fungicidal properties of
the seeds extracted from the neem tree.

Basmati Rice (Oryza sativa Linn.)

Rice Tec. Inc. had applied for registration of a mark “Texmati” before the UK Trade Mark
Registry. Agricultural and Processed Food Exports Development Authority (APEDA)
successfully opposed it. One of the documents relied upon by Rice Tec as evidence in
support of the registration of the said mark was the US Patent 5,663,484 granted by US
Patent Office to Rice Tec on September 2, 1997 and that is how this patent became an
issue for contest.

This US utility patent was unique in a way to claim a rice plant having characteristics
similar to the traditional Indian Basmati Rice lines and with the geographical delimitation
covering North, Central or South America or Caribbean Islands. The US PTO granted the
patent to Rice Tec on September 2, 1997. The said patent covered 20 claims covering not
only novel rice plant but also various rice lines; resulting plants and grains, seed deposit
claims, method for selecting a rice plant for breeding and propagation. Its claims 15-17
were for a rice grain having characteristics similar to those from Indian Basmati rice
lines. The said claims 15-17 would have come in the way of Indian exports to US, if
legally enforced.

Evidence from the IARI (Indian Agricultural Research Institute) Bulletin was used against
claims 15-17. The evidence was backed up by the germplasm collection of Directorate of
Rice Research, Hyderabad since 1978. CFTRI(Central Food Technological Research
Institute) scientists evaluated the various grain characteristics and accordingly the claims
15-17 were attacked on the basis of the declarations submitted by CFTRI scientists on
grain characteristics.

Eventually, a request for re-examination of this patent was filed on April 28, 2000. Soon
after filling the re-examination request, Rice Tec chose to withdraw claims15-17 along
with claim 4.Biopiracy of traditional knowledge is not limited to India alone. In fact, there
have been several examples from other countries where traditional knowledge biopiracy
has become a concern. Some of these examples are given below:

Kava (Piper methysticum Forster)

Kava is an important cash crop in the Pacific, where it is highly valued as the source of
the ceremonial beverage of the same name. Over 100 varieties of Kava are grown in the
Pacific, especially in Fiji and Vanuatu, where it was first domesticated thousands of years
ago. In North America and Europe, Kava is now promoted for a variety of uses. French
company L'Oreal - a global giant with US $10 billion a year in sales - has patented the
use of Kava to reduce hair loss and stimulate hair growth.

Ayahuasca (Banisteriopsis caapi Mort.)

For generations, Shamans of indigenous tribes throughout the Amazon basin have
processed the bark of B. caapi Mort. to produce a ceremonial drink known as
“Ayahuasca”. The Shamans use Ayahuasca (which means “wine of the soul”) in religious
and healing ceremonies to diagnose and treat illness, meet with spirits, and divine the
future.

American, Loren Miller obtained US Plant Patent (no.5, 751 issued in 1986), granting him
rights over an alleged variety of B. caapi Mort. which he had collected from a domestic
garden in Amazon and had called “Da Vine”, and was analyzing for potential medicinal
properties. The patent claimed that Da Vine represented a new and distinct variety of B.
caapi Mort., primarily because of the flower colour.

The Coordinating Body of Indigenous Organisations of the Amazon Basin (COICA), which
represents more than 400 indigenous tribes in the Amazon region, along with others,
protested about a wrong patent that was given on a plant species. They protested that
Ayahuasca had been known to natives of the Amazon rainforest and it is used in
traditional medicine and cultivated for that purpose for generations, so Miller could not
have discovered it , and should not have been granted such rights, which in effect,
appropriated indigenous traditional knowledge. On reexamination, USPTO revoked this
patent on 3rd November 1999. However, the inventor was able to convince the USPTO on
17th April 2001, the original claims were reconfirmed and the patent rights restored to
the innovator.

Quinoa (Chenopodium quinoa Willd.)

Quinoa is a staple food crop for millions in the Andes, especially Quechua and Aymara
people who have bred a multitude of quinoa varieties. One traditional quinoa variety,
Apelawa, is the subject of US patent 5,304,718 held by two professors from Colorado
State University who claim the variety's male sterile cytoplasm is key to developing
hybrid quinoa. The patent claims any quinoa crossed with male sterile Apelawa plants.

Hoodia (Hoodia gordonii (Masson) Sweet ex Decne)

For thousands of years, African tribesmen have eaten the Hoodia cactus to stave off
hunger and thirst on long hunting trips. The Kung bushmen, San who live around the
Kalahari desert in southern Africa used to cut off a stem of the cactus about the size of a
cucumber and munch it.

Hoodia is now at the centre of a bio-piracy row. In 1995, South African Council of
Scientific & Industrial Research (CSIR) patented Hoodia’s appetite-suppressing element
(P57) and hence, its potential cure for obesity. In 1997 they licensed P57 to British
Biotech Company, Phytopharm. In 1998, Pfizer acquired the rights to develop and market
P57 as a potential slimming drug and cure for obesity (a market worth more than £ 6
billion), from Phytopharm for $ 32 million. The San people eventually learned of this
exploitation of their traditional knowledge, and in June 2001, launched legal action
against South African CSIR and the pharmaceutical industry on grounds of bio-piracy.
They claimed that their traditional knowledge has been stolen, and the South African
CSIR had failed to comply with the rules of the Convention on Biodiversity, which
requires the prior informed consent of all stakeholders, including the original discoverers
and users.

Phytopharm conducted extensive enquiries but were unable to find any of the knowledge
holders. The remaining San were apparently at the time living in a tented camp 1500
miles away from their tribal lands. The South African CSIR claimed that they have
planned to inform the San of the research and share the benefits, but wanted to make
sure that the drug proved successful.

The two sides entered into negotiations for a benefit-sharing agreement, despite
complications regarding who should be compensated: the person who originally shared
the information, their descendants, the tribe, or the entire country. The San are nomads
spread across four countries.

However, in March 2002, a landmark was reached in which the San will receive a share of
any future royalties. The settlement will not directly affect Phytopharm or Pfizer since the
San would be paid out of the CSIR’s royalties, as South African CSIR is the patent holder.
South African CSIR will probably receive a royalty of around 10% from Phytopharm,
which itself will receive royalties from sales from Pfizer. Thus San are likely to end up
with only a very small percentage of eventual sales.

Other examples

To cite some more examples of biopiracy, the plant Phyllanthus amarus Schum.et Thonn.
is used for Ayurvedic treatment for jaundice, a US patent has been taken for use against
Hepatitis B. The plant Piper nigrum Linn. is used for Ayurvedic treatment for vitiligo (a
skin pigmentation disorder). A patent has been taken in UK for the application of a
molecule from Piper nigrum Linn. for use in treatment of vitiligo.

The appropriation of elements of this collective knowledge of societies into proprietary

knowledge for the commercial profit of a few is one of the concerns of the developing
world. An urgent action is needed to protect these fragile knowledge systems through
national policies and international understanding linked to IPR, while providing its
development and proper use for the benefit of its holders. What is needed is a particular
focus on community knowledge and community innovation, enterprise and investment is
particularly important.

The local communities or individuals do not have the knowledge or the means to
safeguard their property in a system, which has its origin in very different cultural values
and attitudes. The communities have a storehouse of knowledge about their flora and
fauna, their habits, their habitats, their seasonal behaviour and the like-and it is only
logical and in consonance with natural justice that they are given a greater say as a
matter of right in all matters regarding the study, extraction and commercialization of the
biodiversity. A policy that does not obstruct the advancement of knowledge, and provides
for valid and sustainable use and adequate intellectual property protection with just
benefit sharing is what is needed.
India in the WTO
Seema Sapra on India's engagement with the World Trade Organization

Archive for the ‘traditional knowledge’ Category

India creates Traditional Knowledge Digital Library
to fight bio-piracy
leave a comment »
Indian scientists have completed an eight-year task of translating and compiling Indian traditional knowledge
into a database (that lists over 200,000 treatments and extends to 30 million pages) to prevent patents being
granted on this knowledge by overseas patent jurisdictions. The library which has an online home will be made
accessible to patent examiners in the European Patent office to prevent attempts at patenting existing traditional
knowledge. The EPO and the Government of India have entered into an access agreement that should be
interesting to look at. Here is the news item from the website of the EPO:
India’s Traditional Knowledge Digital Library (TKDL): A powerful tool for patent examiners
On 2 February 2009 the Indian government granted access to its Traditional Knowledge Digital Library
(TKDL), a unique database that houses the country’s traditional medical wisdom, to examiners at the European
Patent Office (EPO).
EPO examiners will use the extensive database to prevent attempts at patenting existing traditional knowledge, a
practice described as "bio-piracy".
The co-operation between India and the EPO comes at a time when many countries are struggling to protect
traditional and respected knowledge against exploitation, primarily in the pharmaceutical sector.
"We take this seriously. Countries with rich traditional and holistic knowledge often have to spend lots of
money on opposition procedures. The database could prevent that by helping the EPO to grant properly scoped
patents", said Paul Schwander, Director of Information Acquisition at the EPO.
An improved patent granting process
Experts at the EPO say that access to the 30-million-page database will help to correctly examine patent
applications relating to traditional knowledge.
"With the TKDL, examiners have improved access to background information at an early stage of patent
examination", Schwander said. "In the old scenario, a patent may have been granted and the countries had to
present evidence against it after the fact".
Prominent cases of patent disputes include a US patent on the wound-healing properties of turmeric (revoked in
1997) as well as an anti-fungal product from the Indian Neem tree (revoked in 2008). Both herbal practices were
evidence of traditional knowledge and the patents were rescinded.
In both instances, the Indian government needed to prove that the patented methods were not novel and were
based on traditional knowledge. The process to challenge the granted patents proved lengthy and cumbersome
as some traditional knowledge had only been documented in Sanskrit or other ancient writings and thus required
extensive translation.
With the advent of the TKDL however, the once onerous process has been transformed into an organised and
objective system. The texts, many of which are hundreds of years old, offer extensive details about ancient
medical practices and can now be accessed digitally.
Moreover, the TKDL has translated these texts – first written in Hindi, Sanskrit, Arabic, Persian and Urdu – into
English, French, German, Japanese and Spanish, granting easier accessibility to examiners.
A unique encyclopaedia
The TKDL is the result of a US$ 2 million joint project between five Indian government organisations,
including the Council of Scientific and Industrial Research (CSIR) and the National Institute of Science
Communication and Informative Resources (NISCAIR).
Under the direction of Vinod Kumar Gupta, the head of NISCAIR, more than 150 experts in traditional
medicine, law and computer science spent the past ten years arranging and classifying the TKDL.
Highlights of the vast database include:
• 54 authoritative textbooks on ayurvedic medicine
• Nearly 150,000 ayurvedic, unani and siddha medicines
• Over 1,500 physical exercises and postures in yoga, more than 5,000 years old
Protecting prior art
The TKDL allows examiners to compare patent applications with existing traditional knowledge. New patent
applications need to demonstrate significant improvements and inventiveness compared to prior art in their
field. If the medical use of an herb is a traditional practice, and thereby public knowledge, it is considered prior
art under EPO regulations.
"Even if a treatment is only available in Sanskrit in an Indian library, it belongs to the prior art because it had
been disclosed openly in the public domain at an earlier point in time", Schwander said.
If a company seeks to patent the medicinal use of an herb listed in the TKDL, EPO examiners conduct a
thorough investigation. "In some cases this will lead to a reduction of the scope of the patent or its refusal",
Schwander said.
However, the company may still be granted a patent on a new method for industrial-scale production of the
active ingredient of the herb, for example, if this process is new and inventive, Schwander explained.
"The public may perceive this as bio-piracy, but there is a difference. The patent applicants would not claim
ownership of the active ingredient itself. The scope would then be limited to a method of producing or isolating
the ingredient".
Shedding light on gray areas
The TKDL is so precise that it lists the time, place and medium of publication for prior art. This new catalogue
system, called the Traditional Knowledge Resource Classification (TKRC), ensures meticulous documentation.
The classification sheds light on what used to be considered gray area. Before the advent of the TKDL, any bio-
prospector for a pharmaceutical company could dig up ancient medical wisdom and lay claim to the practice’s
healing ability without consequence.
Now, thanks to the TKDL, patent examiners can prove exactly when and where a medical treatment became
public knowledge, stymieing would-be bio-pirates.
A collection aimed at Patent Offices
Examiners at the EPO will use secure access methods to work with the TKDL. To measure efficiency, the EPO
will count cases in which the database proved helpful.
Other countries have also opened their digital archives on traditional medical knowledge to EPO patent
examiners. In 2008, the Chinese patent office (SIPO) granted the EPO access to its 32 000-entry database on
traditional Chinese medicine.
"It’s a win-win situation for all involved. These databases help the EPO improve the relevance and content of
prior art searches, while the countries holding traditional knowledge can protect their assets against
misappropriation", Schwander said.
A Mint story gives more background:
The Indian government is also in talks with the US Patents and Trademark Office, or USPTO, to extend the
initiative to that country.
The Council for Scientific and Industrial Research, or CSIR, India’s largest state-managed research agency, will
begin sharing the home-grown catalogue with EPO later this month. CSIR and EPO recently signed an access
agreement to this effect. This will likely result in at least 40 patent filings in Europe getting rejected, which
could have otherwise passed muster.
“The EPO doesn’t give a patent for an invention which has already been known in public anywhere else,”
Rainer Osterwalder, director, media relations, EPO, told Mint by email.
The Traditional Knowledge Digital Library, or TKDL, has been created by the National Institute of Science
Communication and Information Resources, or Niscair, a CSIR body, and contains a 24-million-page searchable
database that translates text from Sanskrit into English, German, French, Spanish and Japanese.
“TKDL provides a new major source…in technical fields that are sometimes concerned with questions of
traditional knowledge,” Osterwalder said.
CSIR has collaborated with the health ministry’s department of Ayush (Ayurveda, yoga and naturopathy, unani,
siddhi and homeopathy) to make this happen.
A CSIR official said that though 2,000 existing patents can now be challenged, there were no plans to initiate
litigation. “This is meant as a deterrent…though technically we can initiate litigation saying that these patents
are based on well-known formulations, it would be too expensive and long-drawn,” the official said on
condition of anonymity.
“This is a very positive step for us in protecting traditional knowledge. It’s a big achievement,” Samir
Brahmachari, director general of CSIR, said over the phone. The next step is to take this initiative to the US. S.
Jalaja, secretary, department of Ayush, said: “This is a big breakthrough for us and we are also in talks with the
United States Patent and Trademark Office for a similar agreement.”
This will likely result in at least 40 patent filings in Europe getting rejected
Patenting of products that are based on of India’s traditional knowledge has long been an issue the government
has been struggling to resolve. In a widely reported case, EPO in 1995 granted a patent on the anti-fungal
properties of neem. India opposed the patent, which was finally revoked and invalidated after 10 years of
litigation. Again in 1995, USPTO had granted a patent on the wound healing properties of turmeric that was
revoked in 1997.
“India did fight successfully the revocation of patent on wound healing property of turmeric at United States
Patent and Trademark Office and (a) patent on anti-fungal properties of neem at European Patent Office,”
Niscair director V.K. Gupta, who is also lead coordinator for the project, said in a 2006 report. “However…(a)
legal battle on revocation is extremely expensive and time consuming.”
For anything to be granted a patent, the applicant must prove that it is novel and not previously known. “Indian
traditional knowledge is prior art, which means it is already known publicly. Hence, once TKDL opens out to
EPO, anyone applying for a patent on which we hold traditional knowledge will not be successful,” said
Elizabeth Varkey, an advocate at the Kerala high court.
“Any patents that have been granted already and fall under TKDL can also be revoked, though that would be a
long, expensive process,” she said.
EPO, however, is unsure of the extent to which TKDL will be applicable. “Many cases affected by aspects of
traditional knowledge are occurring in the field of medicinal preparations. We estimate that at the EPO, about
100 patent applications per year are related to such aspects, but not all of them relate to subjects covered by
TKDL,” Osterwalder said.
There is an argument that the database be used other ways too. “The government should also think about
negotiating access rights (to TKDL) to private parties and other non-governmental entities. Given that the new
chemical entities pipeline is drying up, innovators need to focus more on traditional knowledge that offer
potentially unique insights for new drugs,” said Shamnad Basheer, professor of intellectual property law at the
National University of Juridical Sciences, Kolkata.
“Also private parties could then challenge patent applications that misappropriate Indian traditional knowledge.”
The comment by Shamnad Basheer quoted above on granting access rights to private parties and NGOs is
interesting but likely to raise issues of compensation for use of this knowledge by private parties. The
codification of this knowledge in a repository owned by the government will have ramifications for who will
now benefit from this.

Written by Seema Sapra

March 2, 2009 at 11:02 am
Posted in institutional reform in India and WTO, interests, ideas, and institutions,Public health, traditional
knowledge, TRIPS issues
Tagged with access agreement with the European patent office, bio-piracy, India's Traditional Knowledge
Digital Library
Indian govt project underway to protect ayurveda
and yoga as traditional knowledge
leave a comment »
The Independent has a report today about an Indian govt project to compile a multi-lingual digital database of
traditional knowledge.
See http://news.independent.co.uk/world/asia/article3187089.ece

Indian govt project underway to protect ayurveda

and yoga as traditional knowledge
leave a comment »
The Independent has a report today about an Indian govt project to compile a multi-lingual digital database of
traditional knowledge.
See http://news.independent.co.uk/world/asia/article3187089.ece

“The battle for ayurveda: India is racing to record the details of its traditional medicine
By Andrew Buncombe
Published: 23 November 2007
They range from the everyday to the decidedly obscure, from items with a specific, specialised use to those with a
host of applications. Their common heritage is one of the world’s oldest cultures, and their details are being gathered
together to guard against theft by the West.
For several years the Indian authorities have been collating information about hundreds of thousands of plants, cures,
foods and even yoga poses to create a vast digital database of traditional knowledge dating back to up to 5,000 years
ago, available in five international languages. Now, the first part of that database – relating to ayurveda or traditional
Indian medicine – has been completed and it is set to launch the fight back against what some have termed “bio-
colonialism”.
“The ayurveda part has been completed,” said Dr Vinod Gupta, the chairman of India’s National Institute for Science
Communication and Information Resources (Niscair), which is overseeing the project. “Now we are negotiating an
agreement with international patent offices [for access to this database].”
The database, totalling more than 30 million pages and known as the Traditional Knowledge Data Library, has come
about for one very simple reason: to prevent Western pharmaceutical giants and others using this traditional Indian
information to create a product for which they then obtain a patent.
The danger of such “misappropriation” is all too real. In 1994 an American company was granted a patent for a
product based on the seeds of the need tree, an item that had for centuries been used in India as an insecticide. It
took the Indian authorities more than 10 years to have the patent overturned. Similar battles were fought over a
product based on the spice turmeric – traditionally used to heal wounds – as well as a Texan company’s attempt to
trademark its strain of rice as “Texmati”.
“In 2000 we did a study of the US patent database. We found there were 4,986 patents for products based on
medicinal plants,” said Dr Gupta. “Of those around 80 per cent were based on plants from India … 50 percent of those
patents should never have been given – there was no change to the traditional knowledge.”
Under international guidelines, patents should not be given if it is shown there is “prior knowledge” or existing
information about the product or item. In the United States – where many of the patent applications have been made
– this prior existing knowledge is only recognised if the information has been written down. It does not consider
information passed down for centuries by means of oral tradition to be valid.
Unlike many cultures from which traditional information has been misappropriated, India has an extensive written
tradition. But most of the writing was in languages not widely read in the West. For example ayurvedic texts were
written in Sanskrit or Hindi, writings about unani medicine – based on Ancient Greek practices now only practiced in
the sub-continent – were in Arabic and Persian, while writings about another form of traditional medicine known as
siddha was in the Tamil language.
To get around this challenge, Dr Gupta called in more than 100 practitioners of Ayurveda, siddha and unani to help
compile the information using computer software. The database is being made available in Japanese, English,
German, French and Spanish and the contents will be made available to patent officials once agreements on
protecting the information and preventing it from being passed to corporations, are reached.
Also included within the database are more than 1,500 positions or asanas of yoga. This is because in recent years
several yoga teachers in the West have tried to copyright methods of teaching yoga that they are argue are unique
but which have existed for centuries in India.
One high-profile case involved Los Angeles-based Bikram Choudhury, the self-styled “yoga teacher to the stars”. Mr
Choudhury, who moved to America in the 1970s, first obtained a copyright for a book he wrote. But when other
teachers began copying the way he taught yoga – with 26 specific poses performed in a room heated to 41C (105F) –
he sought legal advice and was told to obtain a copyright for the moves themselves. It has been recognised by the US
courts despite India’s objections.
Dr Dinesh Katoch, an adviser on ayurveda within India’s Ministry of Health and Family Welfare, said more than 50,000
different ayurvedic formulations for treating everything from heart disease to memory loss had been entered into the
database. Some of the information is mentioned in the Vedas, the ancient Hindu texts that date back several thousand
years.
“We want to use this information for the global benefit but it should be done in a judicious way, not by stealing,” he
said, sitting in his office in central Delhi. “We want to prevent misappropriation. Prevention is the most important
thing because it is not easy to repeal a patent.”
In addition to the considerable cost incurred by the Indian authorities fighting patents they do not believe are genuine
or fair, there is a widespread feeling that Western corporations should not be making vast profits from traditional
knowledge while the people who discovered the information receive no benefit.
But campaigners say the misappropriation also has cultural and political implications. “I have termed it bio-
colonialism,” said Vandana Shiva, an Indian environmental activist and author.
“The international intellectual property laws as promoted by the World Trade Organisation [WTO] promote bio-
colonialism because while they say there should be a global system to patent everything, the reality is that patent
inspection is done at a national level. If you want to have a global system you have to have global inspection,” she
said. “This would involve setting up a global database. This will take a decade and cost billions of dollars.”"

Bioprospecting
Bioprospecting is the search in the biosphere, the collection of all living things, for new materials
that have commercial value. Bioprospectors have been likened to the Indiana Joneses of the
21st century(1) heading deep into jungles, scaling the highest mountains and plunging to the
depths of the oceans searching for 'green gold' – the plants and animals with properties which
businesses could use for new products and services. Bioprospectors often search for useful
substances in 'extremophiles' – microorganisms, plants and fungi that grow in extreme
environments, such as rainforests, deserts and hot springs.

Biodiversity prospecting or ‘bioprospecting’ is nothing new. Informal bioprospecting began when

prehistoric people noticed that one plant root tasted better than another, or that some plants
could be used as medicines. Much later scientists have been able to identify the active
ingredients in these plants and extract or replicate that ingredient for widespread use.
Alexander Fleming’s discovery of penicillin was accidental bioprospecting. The isolation of the
active ingredient in willow bark, which had been used by the Greeks since around the fifth
century BC to relieve fever and pain gave us aspirin (salicylic acid). In the United States alone,
56% of the top 150 prescribed drugs, with an economic value of $80 billion, are linked to
discoveries made in the wild(2).

In some cases bioprospectors have to obtain the useful materials they discover by harvesting the
organism that contains it. This clearly has implications for the trail of destruction they left through
the world’s fragile ecosystems. This 'supply issue' is still a limiting factor for some areas of
research. An example is the marine sponges known to contain microbes which appear to
safeguard the health of the host sponge and it therefore appears to be the microbe rather than
the sponge that is the source of the active ingredient being sought. Even though the sponges
have 50% of their weight made up from their symbiotic microbes, the sponges still have to be
harvested, and wasted, to gather the microbe. The University of Maryland Biotechnology Institute
is researching this issue(3) and has noted that “the reason why many of these compounds are not
progressing in clinical trials is that it is extremely difficult to obtain sufficient compound by
harvesting sponges and this approach can do severe environmental damage”.

Research can proceed faster, and more productively, where bioprospectors only need to collect
a small sample of the novel material that will underpin a new product, and from that small sample
they can replicate chemistry and functionality in the laboratory.

Many of the new discoveries are enzymes, biological molecules that are like catalysts for
chemical reactions. For instance, insulin for the treatment of diabetes is produced from bacteria
specially bred for lab use. Molecular biologists can also make compounds by identifying the gene
in a wild organism that controls production of that compound. The compound-producing gene is
inserted into lab bacteria and as the bacteria grow, they produce more of the compound.

Sometimes scientists identify a need for a certain chemical and look for it in nature. Just as often,
however, a scientist undertaking academic research suddenly notices an unexpected and
valuable use for the substances they are using – like the "Eureka!" moment experienced by a
researcher who accidentally discovered new kinds of antibiotics while studying frogs(4). These
are difficult to plan for in commercial research! One scientist might examine microorganisms for
new cancer-fighting drugs. Another may just be trying to understand how microorganisms live
and accidentally discover how those microorganisms protect themselves from something like
cancer.

There are thorny ethical issues raised by bioprospecting, the major one being who benefits from
any discoveries? If the active ingredient in a drug is found in the remote rainforest, how much
credit, or financial reward, will go to the indigenous people who provided expert help to find the
plant involved?

In 1991, the pharmaceutical company Merck entered into an agreement with Costa Rica's
National Biodiversity Institute, and gained access to plants, fungi and environmental samples
from Costa Rica's protected rainforests. The Costa Ricans got the right to royalties if any
marketed drugs resulted(5). The agreement ended after ten years and there seems to be little
public information on whether the agreement is worth repeating. Why didn’t Merck get what they
wanted? What’s the learning for others who would mine the chemical wealth of the rainforest?
Such commercial agreements are still rare and 'biopiracy' is now being debated by the parties to
the UN Convention on Biological Diversity. Genetic information is difficult to cover with existing
patenting systems and poor nations want a binding agreement to ensure they get a share of the
profits from any plant taken out of their country that ends up in a drug, cosmetic or health food.

So while the potential rewards from bioprospecting are significant, those rewards are far from
assured. And business needs partnerships with academia and with indigenous peoples if it
wants to avoid paying too high a price the ‘green gold’ of bioprospecting.

Traditional Knowledge Digital Library

From Wikipedia, the free encyclopedia

Traditional Knowledge Digital Library

Country India
 Type Digital library

Scope traditional knowledge

Established 2001

Website TKDL official website

Traditional Knowledge Digital Library is an Indian digital knowledge repository of the traditional
knowledge, especially about medicinal plants and formulations used in Indian systems of medicine. Set up
in 2001, as a collaboration between the Council of Scientific and Industrial Research (CSIR)
andDepartment of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (Dept. of
AYUSH), Ministry of Health & Family Welfare, Government of India,[1] the objective of the library is to
protect the ancient and traditional knowledge of the country from exploitation through bio-
piracy and unethicalpatents, by documenting it electronically and classifying it as per international patent
classification systems. Apart from that, the non-patent database also serves to foster modern research
based on traditional knowledge, as its simplifies access to this vast knowledge, be it of traditional remedies,
or practices.[2][3][4]

As of 2010, it had transcribed 148 books on Ayurveda, Unani, Siddha and Yoga in public domain, into 34
million pages of information, translated into five languages — English, German, French, Spanish and
Japanese. Data on 80,000 formulations in Ayurveda, 1,000,000 in Unani and 12,000 in Siddha had already
been put in the TKDL. Plus it has also signed agreements with leading international patent offices such
as European Patent Office (EPO), United Kingdom Trademark & Patent Office (UKPTO) and the United
States Patent and Trademark Office to protect traditional knowledge from biopiracy, by giving patent
examiners at International Patent Offices access to the TKDL database for patent search and examinations
purposes.[2][5][6]

Contents
[hide]

• 1 History

• 2 See also

• 3 Reference

• 4 External

links

[edit]History
The issue of biopiracy and unethical bioprospecting made headlines after Government of India successfully
achieved revocation of turmeric and basmati rice patents granted by United States Patent and Trademark
Office (USPTO) and the neem patent granted by European Patent Office (EPO) in late 1990s. Soon cases
of more such patent claims came into light and also the fact that India’s vast traditional medicine knowledge
existed in languages like Sanskrit, Hindi, Arabic, Persian, Urdu, and Tamil, making it inaccessible for patent
examiners at the international patent offices to verify such claims. This experience prompted
the Department of AYUSH, Government of India to create a task force of experts in the areas of traditional
medicine systems of India, i.e. Ayurveda, Unani, Siddha as well as Yoga, patent examiners, IT experts,
scientists and technical officers, for the creation Traditional Knowledge Digital Library (TKDL), which was
finally initiated in the year 2001. The task included, for example transcribing Sanskrit shlokas which
describe an Ayurvedic formulation in text form, using Traditional Knowledge Resource Classification
(TKRC) devised for the purpose, so that it is easily understandable to any patent examiner, anywhere in
the world. For this reason, the entire text, all 34 million pages of it, is available in five languages: English,
German, French, Spanish and Japanese.[5][7][8][9]

As the database project reached its completion, the government in 2006 decided to allow access to the
library to international patent offices, including European Patent Office (EPO), Japan and the UK, subject to
a non-disclosure clause. This allowed patent examiners to evaluate patent applications and stop attempts
to patent traditional knowledge as "new" inventions.[2][6][7][10][11] Subsequently, agreements were signed with
European Patent Office (EPO) in February 2009, with United Kingdom Trademark & Patent Office
(UKPTO) in January 2010, apart from an agreement with the U.S. Patent and Trademark Office (USPTO)
after the Summit meeting between US President Barack Obama and Prime Minister, Manmohan Singh,
also in January 2010. With patent examiner getting access to TKDL database, legal cases regarding
unethical patent claims, which in the past have taken years and vast expenditure for bringing each case to
fruition, could be avoided.[7][12][13]

Another project to include data relating to 1,500 postures in yoga began in 2008, after new reports of a
large number of false gurus and yoga masters, who attempted to patent in their country this ancient
knowledge, for example 131 yoga-related patents were traced in the US alone in 2007, and after uproar in
the parliament and media, Government of India took up the issue with USPTO.[14][15]Thereafter, a team of
yoga gurus from nine schools working with government officials and 200 scientists from the Council of
Scientific and Industrial Research (CSIR) scanned 35 ancient texts including the Hindu epics,
the Mahabharata and the Bhagwad Gita, and Patanjali's Yoga Sutras to register each native pose, and end
2009, 1500 asanas were to be added.[13][16]

In 2010, Union Environment Minister, Jairam Ramesh stated that over a period of eight years on 34 million
pages of information have been collected at an estimated cost of Rs 7 crore, further at least 36 cases had
been identified by the EPO and 40 cases by USPTO, using TKDL. As a future project, a people’s Register
of Biodiversity, is also being set up by the government, to document and protect, traditional knowledge
passed down through the oral tradition, under India’s National Biodiversity Act of 2002.[17][18]
[edit]See also

 Concern on TKDL Access by foreign patent Offices

Some IPR Experts have expressed concern [19] over sharing TKDL in the form of 'prior art' with foreign
patent offices, as this action would undermine its confidentiality according to them. 'Prior art' definition
covers everything that has been published, presented or otherwise disclosed to public anywhere in the
world on the date of patent and includes documents in foreign languages.

“I wonder how confidentiality can be maintained if TKDL is treated as a prior art, quips Mr R. S. Praveen
Raj, an IPR Expert, who was formerly an Indian Patent Examiner and presently scientist with the National
Institute for Interdisciplinary Science and Technology (NIIST), Thiruvananthapuram.

[edit]References

1. ^ Traditional Knowledge Digital Library AYUSH.

2. ^ a b c "Know Instances of Patenting on the UES of Medicinal Plants in India". PIB, Ministry of

Environment and Forests. May 6, 2010.

3. ^ "CSIR chief stress on non-patent literature database". Business Line. September 23, 2000.

4. ^ Sengupta, p. 187

5. ^ a b "About TKDL". TKDL website.

6. ^ a b "CSIR wing objects to Avesthagen patent claim". Live Mint. Apr 28 2010.

7. ^ a b c "India Partners with US and UK to Protect Its Traditional Knowledge and Prevent Bio-

Piracy". Press Information Bureau, Ministry of Health and Family Welfare. April 28, 2010. Retrieved 25

May 2010.

8. ^ Dutz, p. 14

9. ^ Alikhan, p. 85

10. ^ "Free access to traditional knowledge library". Financial Express. Jul 14, 2006.

11. ^ "Patents offices given access to TK library". Financial Express. Jun 30, 2006.

12. ^ "India documents traditional formulations, yoga postures". The Hindu. January 4, 2010.

13. ^ a b "India’s Traditional Knowledge Digital Library (TKDL): A powerful tool for patent

examiners". European Patent Office (EPO). 2009-02-24.

14. ^ "Indian Government in Knots Over U.S. Yoga Patents". ABC News. May 22, 2007.

15. ^ "GRANT OF PATENTS ON YOGA BY UNITED STATES PATENT AND TRADEMARK

OFFICE – THE FACTUAL POSITION". PIB, Ministry of Commerce & Industry. June 13, 2007.

16. ^ Nelson, Dean (23 Feb 2009). "India moves to patent yoga poses in bid to protect traditional

knowledge". The Telegraph (London).

17. ^ "India favours pact for benefit sharing of bio-resources". Business Standard (May 22, 2010).

18. ^ "Biodiversity study with replay whiff". The Telegraph. January 5 , 2010.
 19. ^ http://www.thehindubusinessline.com/2010/01/25/stories/2010012551041500.htm

 Alikhan, Shahid; R. A. Mashelkar (2004). Intellectual property and competitive strategies in the
21st century. Kluwer Law International. ISBN 9041121196.

 Dutz, Mark Andrew (2007). Unleashing India's innovation: toward sustainable and inclusive
growth. World Bank Publications. ISBN 0821371975.

 Sengupta, Nirmal (2007). Economic Studies of Indigenous and Traditional Knowledge. Academic
Foundation. ISBN 8171885

FINANCIAL EXPRESS FRONT PAGE

Corporate Economy Expressions Markets Leisure
Monday, February 8, 1999

Bio-prospecting or Bio-piracy?
Sudhir D Ghatnekar & Mandar S Ghatnekar
Biotechnology is indeed a big business. The manipulation
of living materials to create new types of medicines and
agricultural products is currently worth $2 billion a year in
the United States. Estimates show that biotech profits will
soar to $50 billion by the year 2000. Most of the "raw
material" for this booming industry comes from the
world's dwindling rainforests of the Southern Hemisphere.

Many scientists believe that the cures for AIDS, Cancer,

and other dreaded diseases lie hidden beneath these
verdant tropical canopies. The trick is to find the precious
gene or cell line first, and then patent the "invention."
Profits may be many years down the line, with extensive
government-mandated trials and testing for safety, but
when pharmaceuticals or agricultural products finally do
make it to market, companies often see a phenomenal
return on their investments.

Supporters of this genetic gold rush refer to it as

`bioprospecting' since genetic materials found in the
developing world may yield cure fordisease as well as
cash. But what also looms on the horizon, and in fact is
already occurring in many parts of the developing world is
`biopiracy'. That means corporations use the folk wisdom
of indigenous peoples to locate and understand the use of
medicinal plants. Then this knowledge is commercially
exploited while the indigenous people who made it all
possible receive little or nothing in return.

In this connection it becomes important to answer few

important questions:What is biodiversity prospecting?

Biodiversity prospecting is the exploration of wild plants

and animals for commercially valuable genetic and
biochemical resources.

What are genetic resources?

Genetic resources are the genes found in plants and

animals that are of actual or potential value to people. (The
term is also used to refer to chemicals found in plants and
animals, since these are based on genetic information.)

Through the use of new biotechnologies, genes from any

plant or animal can be transferred toanother. Plant and
animal breeders, for example, use genes found in wild
species, and genetically engineered organisms are now
being used for new industrial applications such as mining,
wastewater treatment, and carbon-dioxide scrubbing. The
different biochemicals produced by species are of
considerable value in the pharmaceutical and pesticide
industries.Well, the number of biodiversity prospecting
ventures are growing rapidly, The flurry of interest and
enthusiasm in biodiveristy prospecting is taking place in a
policy vaccuum. Virtually no precedent exists for national
policies and legislation to govern and regulate wildland
biodiversity prospecting. If done well, biodiversity
prospecting can contribute greatly to environmentally
sound development and return benefits to the custodians of
genetic resources.

But carried out in the mold or fungus of previous resource-

exploitation ventures, biodiversity prospecting can have a
neglgible or potentially harmful effect on biodiversity
conservation andenvironmentally sound development.

Biodiversity prospecting offers suggestions to

governments, non-governmental organisations, scientists,
and industry on designing effective and equitable
biodiversity prospecting programs, with a particular focus
on the use of biodiversity in the pharmaceutical industry.

The premise of Biodiversity Prospecting is that appropriate

policies and institutions are needed to ensure that the
commercial value obtained from genetic and biochemical
resources is a positive force for development and
conservation.

How does biodiversity prospecting relate to

biodiversity conservation?

Prior to the Convention on Biological Diversity, most

countries considered genetic resources to be the "common
heritage of humankind", meaning that there was no law or
moral obligation requiring a company that collected
genetic material from another country to pay for access to
that material.

The convention, by asserting the sovereignty of nations

over their biodiversity, explicitlyrecognizes the right of
countries to establish legislation regulating access to
genetic resources and, if they wish, require payment for
that access.

Moreover, it requires that any company or country

collecting biodiversity obtain the prior informed consent of
the source country. Because of the Convention, it will soon
become standard practice for collectors to pay a fee for
access to biodiveristy and to enter into contractual
aggreements with source countries (or institutions within
those countries) that allocate a share of royalties (or the
patent itself) to the source country.

Why did the USA intially refuse to sign?

The biodiversity convention contains several confusing

articles. The US Government, by considering the worse
case interpretation of articles related to intellectual
property rights (patents) and financial mechanisms, argued
in Rio that the convention would undermine the interests
of companies in the USA. The Clinton administration has
reversed the US position on signature,arguing that US
interest can be adequately be protected under the
convention and that it is an important legal instrument that
will help conserve biodiversity. (In 19994, ratification of
the Convention on Biological Diversity was referred to the
Committee on Foreign Relations. The Committee held
hearings then submitted Executive Report 103-30 to the
full Senate. However, the Senate failed to bring ratification
of the Convention to the floor for a vote. Because the
United States has not ratified, it is considered an
"observer" rather than a "party" to the Convention.)

Pharmaceuticals as Biopirates

Biotechnology and new patent laws have allowed

companies to capitalize on even the smallest life forms.
The E Merck pharmaceutical company has patented
microbial samples from nine countries. These include soil
bacteria from a heather forest on Mt. Kilimanjaro, a
Mexican soil fungus useful in the manufacturing of male
hormones, a fungus found in Namibian soil of potential
use in treating manic depression, asoil bacteria in India
that serves as an anti-fungal agent, and a Venezuelan soil
bacteria patented for use in the production of antibiotics.
The `biopirates' are also on the lookout for profitable,
patentable plants. In one remarkable example, several
North American companies, including WR Grace, have
been granted more than 30 US patents on the neem tree of
India-- and not only on the tree, but also on the indigenous
knowledge about its many uses.

In another act of biopiracy, two drugs derived from the

rosy periwinkle -vincristine and vinblastine-earn $100
million annually for pharmaceutical giant Eli Lilly. The
plant is indigenous to the rainforest of Madagascar, but the
country has received nothing in return.
Pharmaceuticals as Biodemocrats

Given biodiversity's growing value to industry and its

diminishing supply as a result of the destruction of
rainforests around the world, it is not surprising that
countries rich in biodiversity would seek to profit from it.
But what is unique about currentinitiatives is that they are
likely to lead to a situation in which the use of genetic
resources contributes to (a) the conservation of those
resources,(b) to the development needs of the source
country and (c) to higher profits for industry

The best example of this is the National Biodiversity

Institute (INBio) in Costa Rica, which, in September 1991,
announced a groundbreaking agreement with the US-based
pharmaceutical firm E Merck and Co. Under the contract,
INBio will provide E Merck drug sceening from wild
plants, insects, and microorganisms. In return, E Merck
will provide INBio with a two-year research and sampling
budget of $1.14 million, royalties on any commercial
products that result, and technical assistance and training
to help establish drug research in Costa Rica. INBio
agreed to contribute 10 per cent of the unfront payment
from E Merck and 50 per cent of any royalties to Costa
Rica's National Park Fund to help conserve national parks.
Costa Rica is benefiting from its relationship withINBio in
the two ways, in addition to conservation. First, this
agreement results in substantial transfer of technology to
Costa Rica. Costa Rican scientists are being trained to
discover and extract drugs, and INBio is already beginning
to assess some of the drugs for their usefulness against
local diseases.

Second, Costa Rica stands to receive substantially greater

sums from any commercial discovery than has historically
been the case."

India, on the other hand, consists of 65 crore acres of land.

Of this, 35 crore acreas are under agriculture. The country
is surrounded on three sides by water and the mighty
Himalayas give us plenty of flora and fauna and good
monsoons too. We have plenty of rivers, reservoirs and
streams. And all these 65 crore-acre land gets plenty of
sunshine so biomass energy is generated in plenty. To
manage these renewable resources we have almost 100
crore population. So we have the highest and massive
genetic resources. Many readers are familiar with the
battle the Council ofScientific and Industrial Research
(CSIR) recently won against registering of turmeric patent
in USA. We also know the efforts CSIR scientists had to
take against the US patent on Basmati rice.

Now we have won the battle but many more such battles
are in the offing and are awaited. Before we lose our
stronghold in the foreign hands to conserve our rich
diveristy we all third world countries need to unite. There
are 200 such medicinal plants from our country on which
multinationals are trying to take patents on various usages
all over the world. And India with such wider scientific
base and cultural background should take lead to stop all
kinds of biopiracies by multinational companies. Rather
India should take lead to form bio-partnership and being
senior partner in manpower and genetic resources amongst
all the third world countries. Indeed this is the need of
time. After all, the prospects of Bioprospecting depend on
successful Bio-Partnership only.

(Authors are from Biotechnology ResourceCentre)

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