Traditional knowledge protection

Name of students-• Kritika Hanamshet (MTI-09018)• Abinash Sahoo (MTI-09036)• Abhishek A.P. Singh (MTI-09042)• Clyde Vincent (MTI-09044)• Priyanka Yadav (MTI-09048)

Dr. D. Y. Patil University of Biotechnology And Bioinformatics, C.B.D. Belapur, Navi Mumbai, India.

Definition: 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.

Traditional knowledge

Yoga Application of turmeric, neem,

Jamun, karela etc. guanyin cao

examples

Defensive protection aims to stop people outside the community from acquiring intellectual property rights over traditional knowledge. India, for example, has compiled a searchable database of traditional medicine that can be used as evidence of prior art by patent examiners when assessing patent applications. This followed a well-known case in which the US Patent and Trademark Office granted a patent (later revoked) for the use of turmeric to treat wounds, a property well known to traditional communities in India and documented in ancient Sanskrit texts

Positive protection is the granting of rights that empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation. Some uses of traditional knowledge can be protected through the existing intellectual property system, and a number of countries have also developed specific legislation. However, any specific protection afforded under national law may not hold for other countries, one reason why many indigenous and local communities as well as governments are pressing for an international legal instrument.

Two types

India’s TKDL, a collaborative project between the Council of Scientific and Industrial Research (CSIR), and the Department of AYUSH, is a home-grown effort to ensure patent offices around the world do not grant patents for applications founded on India’s wealth of age-old TK.

Cases on wound healing properties of turmeric, and the antifungal properties of neem acted as stimulants for the formation of TKDL.

Origin

So in June 1999: Recognition of need of creation of Traditional Knowledge (TK) data bases and need of support to developing countries by Standing Committee on Information Technology (SCIT) of World Intellectual Property Organization (WIPO).

January, 2001: Cabinet Committee of Economic Affairs (CCEA's) approval on TKDL Project

Neem tree (Azadirachta indica), the tree of miracles.

Ayurvedic literature -‘Neem bark is cool, bitter, acrid and refrigerant

Attractive broad-leaved, evergreen, up to 30m tall.Trunk is 30-80 cm in diameter.

Essential oils, fatty acids, amino acids and chemicals such as nimbin, nimbinin and nimbidin.

Seeds ,leaves oil, bark , roots have medicinal properties.

Tiredness, cough, fever, loss of appetite,worm infestation, vomiting, skin diseasesand diabetes.

Originates from the Indian subcontinent and now grows in the dry regions of more than 50 tropical countries.

Neem Biopiracy Case

Used for centuries by local communities in agriculture as an insect and pest repellent, in human and veterinary medicine, toiletries and cosmetics.

Since the 1980s, many neem related process and products have been patented in Japan, USA and European countries.

USA (54) , Japan (35), Australia (23), India (14). In India more than 53 patent applications are pending.

The India and United States were involved in a biopiracy dispute.

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.

Neem-based bio-pesticides Neemix, for use on food crops

Granting of a patent to a neem-based crop fungicide by the European Patent Office (EPO).

In 2000 EPO revoked patent following an appeal by India.

Vandana Shiva of the Research Foundation for Science, Technology and Ecology(RFSTE) said "It was pure and simple piracy. The oil from neem has been used traditionally by farmers to prevent fungus. It was neither a novel idea nor was it invented“.

It got support of the International Federation of Organic Agriculture Movements (IFOAM) and green euro-deputies.

The backbone of the Indian argument, presented before the EPO by Professor U P Singh, an agricultural scientist at the Benaras Hindu University, was that the fungicidal qualities of the neem tree - a traditional plant known for its medicinal properties -- and its use has been known in India for over 2,000 years.

EPO agreed that the process for which the patent had been granted had actually been in use in India for many years.

Calling the EPO decision an historic one, Shiva said: "Patenting is one of the ways through which traditional users can be threatened. The free tree will stay free.

A tropical herb grown in East India. powdered product made from the rhizomes of its flowers has several popular uses worldwide.

Turmeric powder has a distinctive deep yellow color and bitter taste.

Used as a dye, a cooking ingredient, and a litmus in a chemical test, and has medicinal uses.

In the mid-1990s, turmeric became the subject of a patent dispute.

 A U.S. patent (no.5, 401,504) on turmeric was awarded to the University of Mississippi Medical Center in 1995, specifically for the "use of turmeric in wound healing." 

Two years later, a complaint was filed by India's Council of Scientific and Industrial Research(CSIR).

Turmeric Patent Dispute

In India, where turmeric has been used medicinally for thousands of years, concerns grew about the economically and socially damaging impact of this legal biopiracy.

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.

United States Patent and Trademark Office (US PTO) investigated the validity of this patent. 

In 1997, 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.

Case study – Patent issue Jamun , Brinjal, and karela

The use of ‘karela’, ‘jamun’ and brinjal for control of diabetes is common knowledge and everyday practice in India. The use of these substances in the treatment of diabetes dates back many centuries in India and is mentioned in several ancient texts on healing such as “Wealth of India”', the “Compendium of Indian Medicinal Plants” and the “Treatise on Indian Medicinal Plants”.

A patent number 5,900,240 was granted recently to Cromak Research Inc based in New Jersey to a team comprising two non-resident Indian scientists Onkar S Tomer and Kripanath Borah, and their colleague Peter Glomski. The American patent was granted on an edible composition comprising a mixture of at least two herbs selected from the group consisting of jamun, bitter gourd or bitter melon (Karela), and eggplant (brinjal) .

The herbal mixtures have been cited as dietary supplements and are claimed to be especially useful for lowering the glucose level in blood among those suffering from diabetes.

The patent was challenged on the ground of prior art. However, Article 102 of the U.S. Patent Law, which defines prior art, does not recognise technologies and methods in use in other countries as prior art. If knowledge is new for the U.S., it is novel, even if it is part of an ancient tradition of other cultures and countries.. Because of this, the Jamun could be patented in the USA. But it does created hue and cry in India for such a patent as it was considered to be a biopiracy i.e. theft of Indian TK.

CONCLUSION•Globalization have caused misuse of traditional knowledge for monopolistic rights and the ultimate profit from its sales.•So there is a strict need of awareness for the traditional procedures and knowledge.•Documentation activities undertaken by developing countries like India are worth recognition.•Therefore the protection, conservation and preservation of the traditional knowledge and its practice and culture should be of major concern.•In order to prevent the misuse by unauthorized parties of traditional knowledge and promotion of its use and its importance in development.

References –

1)http://www.ens-newswire.com/ens/aug1999/1999-08-27-01.asp

2) http://worldinformation.org/wio/readme/992007035/1078487909

3)http://expressindia.indianexpress.com/ie/daily/19990715/ile15042.html

4)https://tspace.library.utoronto.ca/bitstream/1807/33263/1/

Kaushal_Nidhi_201211_LLM_thesis.pdf

5)http://www.ipproinc.com/admin/files/upload/0ec3e7fe64a0fffd09b03758b76aab1b.pdf

6) http://infochangeindia.org/trade-a-development/news-scan/india-wins-

landmark-neem-patent-battle-in-europe.html

7) http://www.france-libertes.org/Cases-history-of-

Biopiracy.html#.UkGB7NJHKn8

8) http://news.bbc.co.uk/2/hi/science/nature/4333627.stm

9) http://www1.american.edu/TED/neemtree.htm

10) http://neemfoundation.org/

11) http://www1.american.edu/ted/turmeric.htm

12) http://www.tkdl.res.in/tkdl/langdefault/Common/Biopiracy.asp