Protection of Traditional Knowledge
Sindhu Vijayakrishnan, Sr Associate,
Lakshmi Rajagopal, Sr Associate,
Meenakshi Chotia, Associate,
K&S Partners, I P Attorneys

This article explores legal and policy developments in India regarding the protection of traditional ethnopharmaceutical knowledge.

Evolution of ideas, of thoughts and knowledge for betterment of society has always had prominence, at times passed from one generation to another and taking the form of Traditional Knowledge; sometimes recorded and at times lost in translations. The knowledge however becomes part of national heritage, depicting within its intricacies age old ideologies requiring protection and safe keeping. Additionally, with the face of Traditional Knowledge constantly changing and its fragile nature demanding existence, it is imperative that measures be taken to safe-guard age-old concepts and ideas. This is also reinforced by the fact that monopoly is sought for such innovations which have been derived or developed by local/indigenous communities; and form part of their Traditional Knowledge and heritage. Therefore, the question then arises that on whom lies the responsibility of ensuring non-exploitation of such innovations.

A part of the onus for protecting such knowledge lies with legal systems of a country, also bound by their Intellectual Property laws in the sectors of Patents, Trademarks and Geographical Indications etc. In the area of Patents, prior to grant of a Patent Application, there are various check-posts in place to ensure that no invention relating to any form of Traditional Knowledge is monopolised. One of the most popular ways of screening is by conducting searches by Patent Officials and issuance of search/examination reports citing any documents relevant to the Patent Application. Such reports often cite any relevant literature, like Patent/Non-Patent documents which include information on Traditional Knowledge as well. In this regard, to maintain uniform prosecution across the four Indian Patent Offices and to bring further transparency to the public, Office of the Controller General of Patents, Designs and Trademarks, has published guidelines for processing of Patent Applications relating to Traditional Knowledge and Biological Material. These guidelines also elucidate six ‘Guiding Principles’, which provide clarity and helpful illustrations to showcase the parameters to be employed during examination of Patent Applications relating to Traditional Knowledge.

Another jurisdiction specific mechanism employed in most countries is inclusion of explicit sections in their Intellectual Property Laws, which capture in essence their approach towards Traditional Knowledge. As an exemplification, India replete with flora and fauna has a rich reserve of traditions owing to the presence of various local communities. Hence, the Indian Patent laws have been drafted keeping this aspect in mind. Particularly, Section 3 of the Indian Patents Act, 1970, includes inventions which cannot be patented in India. Sections 3(p) and 3(e) are of special significance with respect to the area of Traditional Knowledge and provide Patent Officials with instruments to reject any Patent Applications relating to Traditional Knowledge. These sections hence safe-guard and prevent misuse of Traditional Knowledge by ensuring that innovators are unable to seek monopoly for such inventions in India.

Often it has been observed that abundance of flora and fauna, and developments of tradition have mutually inclusive relation with each other. Hence, in order to cover this area as well, yet another provision under the Indian Patents Act, 1970, and the Biological Diversity Act, 2002, is the requirement of informing and/or seeking permission from the National Biodiversity Authority for using any biological material from India, contravention of which could attract penalty and/or imprisonment. The crux of these provisions is to firstly cinch that efficient tools are in place for combating bio-piracy as well as misuse of biological resource stemming from India is prevented. Secondly, these provisions also ensure that local/indigenous communities primarily responsible for use and safe-guarding of the biological resource are duly compensated.

The Indian Patent laws also provide for mechanisms of Revocations and Pre/Post Grant Oppositions. These mechanisms ensure that if any relevant documentary evidence or literature has been missed out by Patent Office during scrutiny process, then the public has opportunity to bring such documents to notice of the legal system. It is important to note here that such documentary evidence or literature can also include Traditional Knowledge related documents. Similarly, other jurisdictions also include their own check-posts and mechanisms to ensure that Traditional Knowledge is not misused or exploited in the process of seeking monopoly for an invention. For instance, European Patent laws have provision for filing Third Party Observations which bring to the notice of the Patent Office any documentary evidence previously not cited by the Examiner, but which may be used at his discretion. Hence, apart from the legal systems of various jurisdictions, the onus also lies with general public to protect and safe-guard Traditional Knowledge from being exploited.

It is pertinent to note that entire Patent System broadly revolves around the triad of novelty, non-obviousness and industrial applicability of an invention. The parameters of novelty and non-obviousness depend solely on presence of any prior published document, including Traditional Knowledge related documents. However, in the past, not all such documents were readily available for scrutiny. This could be due to the fact that some of the documentary evidence on Traditional Knowledge dates back to centuries and form part of ancient texts not easily accessible. Further, most of these documents were scripted in local/ancient languages as well. Keeping this in mind, the ‘Traditional Knowledge Digital Library’ was initiated in the year 2001, as collaborative project between Council of Scientific and Industrial Research (CSIR); Ministry of Science and Technology and Department of AYUSH; and Ministry of Health and Family Welfare.

Traditional Knowledge Digital Library [TKDL] is an Indian Database which contains documented literature relating to Ayurveda, Unani, Siddha and Yoga. It is a digitalised resource which provides single dynamic platform for all such traditionally known and/or used documented information. In order to make the platform user friendly and accessible to International Community, the Library is available in different languages such as English, German, French, Japanese and Spanish. Further, the Library has been classified into Traditional Knowledge Resource Classification (TKRC) system, which divides resources into Ayurveda, Unani, Siddha and Yoga sections. The TKDL has been designed in a format such that customised searches can be conducted within the Library to identify relevant documents. Hence, the TKDL revolves around providing single-point passage to the user in accessing ancient documented data, whose existence otherwise might have been unknown.

Having said the above, it is surprising to observe that only fraction of the entire information uploaded on TKDL is available for viewing on their website. Even though plethora of documents has been uploaded and translated into various languages, they are not readily accessible to anyone who browses the website. Hence, without complete access to TKDL, it becomes difficult to classify if any ongoing research falls under the purview of Traditional Knowledge or is being derived from it. Without such information at hand, the larger question of whether the outcome of such research can be monopolised or simply commercialised remains ambiguous. On the contrary, if all the documents uploaded on TKDL were readily accessible, then a researcher could take an informed decision on whether to invest further in the research or even improve upon existing knowledge. For instance, in the current pharmaceutical world governed by erratic movements of an ever-demanding society, objective of research is not to replicate existing information but to improvise on the same based on modern practices. Therefore, use of only Traditional Knowledge to cater to varying requirements of society is not a viable option. However, it would be interesting to determine over time as to what would be the thin differentiating line that exists between the aspects of bio-piracy and true innovation without any motivation. Hence, to avoid stagnation of technological advancements, it is imperative that suitable steps be taken to develop a process to ensure that all documents are made accessible. However, to also avoid any misuse of information, the process developed could include aspects such as execution of non-disclosure/confidentiality agreements, dissemination of information on ‘need to know’ basis, monetary compensations etc.

However, it is important to mention here that access to all documents of TKDL has been provided to selective Patent Offices across the world, such as Indian Patent Office, European Patent Office, United States Patent and Trademark Office, Japanese Patent Office, Australian Patent Office etc. by way of access agreements. This enables the Patent Offices to conduct holistic search and prevent misuse of Indian Traditional Knowledge as well. It is noteworthy to mention here that during prosecution, some of the International Jurisdictions, such as Australia, Europe etc. frequently cite documents obtained from TKDL for raising objections against patentability of Patent Applications. This reaffirms the fact that TKDL has become an integral part of the search conducted during prosecution of a Patent Application. In fact various jurisdictions have either established or are contemplating initiation of similar platforms for compiling documents and literatures relating to their Traditional Knowledge and practices. Hence, the unmitigated contribution of TKDL in preservation and protection of an ebbing knowledge reservoir has had an unprecedented impact in the area of Traditional Knowledge.

Although various provisions have been included, true capitalisation of Traditional Knowledge would occur only when optimal balance is achieved between prevention of exploitation and advancement of innovations employing such resources.