Biopiracy & Patents of Traditional Knowledge in India

Introduction

We all have followed ‘nuskhas’ or tricks passed down by our elders and have tried numerous home remedies. If you go deeper into such knowledge, you may find scientific foundations of the knowledge. Such kinds of knowledge come under the umbrella term of “traditional knowledge.” Traditional knowledge may be in art forms, techniques used in agriculture, medical practices and much more. Traditional knowledge needs to be protected as they form part of our culture and heritage, are a source of livelihood for indigenous people, and communities and also, consist of practices for sustainable living and protection of the environment. Traditional knowledge is difficult to document and hence, becomes victim to commercial exploitation without benefitting the indigenous communities. Biopiracy of traditional knowledge is becoming a concern for India. This article discusses about biopiracy nd patents of traditional knowledge.

Concept of ‘Biopiracy’

1. Meaning

Merriam-Webster defines biopiracy as, “the unethical or unlawful appropriation or commercial exploitation of biological materials (such as medicinal plant extracts) that are native to a particular country or territory without providing fair financial compensation to the people or government of that country or territory”. This definition is self-explanatory.

If we think about it, biopiracy is deeply rooted in colonization. Many of the commercial commodities today, such as sugar, pepper, and coffee have been plundered from indigenous communities by Western colonizers.

2. Types

There are 2 types of biopiracy;

• : This is by way of practices contravening the Convention on Biological Diversity, 1992 (CBD) and/or implementation in the national legislation.

One of the reasons for the CBD, as stated in the Preamble, is the recognition of  close and traditional dependence of man indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitable benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and       sustainable use of its components. Through a number of Articles, the CBD has impressed upon:

(Full text of CBD here.)

• : This relates to rights in intellectual property. Patents are sought on plant varieties or for simply applying traditional knowledge. Such patents lack novelty, i.e., the quality of being new and original, an essential requirement for granting patents. Since traditional knowledge is largely undocumented and uncodified, it becomes difficult for indigenous communities to challenge such patents.

3. Important Cases of Biopiracy in India

India has a vast amount of traditional knowledge which is as old as time and still being used today. Traditional knowledge is usually passed on by the elders teaching the next generation orally. The few documents that are available, such as the Vedas are in non-English languages such as Sanskrit, Pali, Hindi etc. Hence, traditional knowledge in India is susceptible to biopiracy. Here are some of the most important cases of biopiracy in India;

1. The Turmeric Patent Case: In 1955, a US patent was granted to two      researchers covering claims of oral and topical use of turmeric powder to heal surgical wounds and ulcers. The Council for Scientific and Industrial Research (CSIR) challenged the patent on the ground that turmeric had been used for centuries by the people of India to heal wounds and thus, the patent lacked “novelty”. The CSIR supported its case with documents ranging from scientific publications to books on home remedies and Ayurvedic texts on Indian medical system. The US Patent Office withdrew the patent on August 13, 1997. This was the first case of successful overturn of a patent based on a traditional remedy.
2. The Neem Patent Case: The neem plant/tree is well-known for its medicinal value and anti-bacterial and antifungal properties. Neem is a traditional potent insecticide used by farmers in India. A patent was granted for the preparation of fungicide derived from the seeds of the neem tree by the European Patent Office in Munich to the US Department of Agriculture and the chemical multinational, W. R. Grace, in 1955. Since then, Dr. Shiva, Director of Research Foundation for Science, Technology and Ecology, along with the International Federation of Organic Agriculture Movement and the Green Party in European Parliament, had been opposing it. The patent was revoked in 2000 but was followed by an appeal. On March 09, 2005, the appeal was dismissed and the revocation was upheld.
3. The Basmati Rice Patent Case: Basmati is an aromatic, long-grained variety of rice traditionally grown in India and Pakistan. In 1997, the US Patent and Trademark Office (USPTO) granted a patent to Rice Tec Inc., a US-based multinational company, for the novel grain ‘basmati’. The company also claimed protection of new varieties of the ‘basmati’ crop. It also professed to have developed a novel strain by interbreeding      the basmati crop with another crop known as American Basmati. The patent was objected to by many Indian NGOs and ultimately, by CSIR. In 2000, the Indian Government challenged the patent claims by the company. It was contended by India that Thailand, Pakistan and India were the main exporters of rice to the US. Thus, the patent affected India-US trade. India argued that the patent was not novel but obvious and hence, the validity of the patent is null and void. In 2002, Rice Tec withdrew 15 claims from its 20 claims. It retained protection for 3 plant varieties derived from the ‘basmati’ crop. This case also raised the issue of geographical indications. The USPTO had stated that since ‘basmati’ was not a region, a trademark and geographical indication in India, the company could use the name. Due to repeated protests by India and Pakistan, the USPTO finally disallowed the use of the word ‘basmati’. This case triggered the enactment of the Geographical Indication of Goods (Registration and Protection) Act, 1999. “Basmati Rice” is now registered as a geographical indication under the Act.

4. Biopiracy through Bioprospecting

Bioprospecting is a term used in research which means the exploration of natural resources, plants or animals, to derive commercially valuable products. Enzymes, molecules and other biological materials extracted from plants and animals are used in the pharmaceutical, agricultural, cosmetics and other industries. Bioprospecting projects do not always result in commercially valuable drugs. Neither do all bioprospecting efforts involve use of indigenous and traditional knowledge. Where such knowledge is used, ideally, the indigenous communities and countries from which commercially valuable products were extracted would economically benefit from bioprospecting. However, bioprospecting may also lead to exploitation and biopiracy.

The Bonn Guidelines, adopted by the Conference of the Parties to the CBD in 2002, are intended to help governments, as providers and users of genetic resources, in the adoption of measures to govern access and benefit-sharing in their countries. The Guidelines recognize that indigenous groups should be able to share the benefits from their traditional knowledge. The Guidelines stress that prior informed consent should be sought from the resource provider by the user of genetic resources.

Protection of Traditional Knowledge under the Patents Act, 1970

The Patents Act, 1970 (“the Act”) provides defensive protection of traditional knowledge. Through various sections, the Act enables indigenous communities to stop people from outside the community from acquiring intellectual property rights over traditional knowledge.

• – An invention which is traditional knowledge or a combination or duplication of known properties of traditionally known components is not an invention and hence, not patentable under the Act.
• – If the applicant mentions a biological material in the specification which may not be described in such a way as to satisfy clauses (a) and (b) of section 10(4), and if such material is not available to the public, the application shall be completed by depositing the material to an international depositary authority under the Budapest Treaty and by fulfilling a number of conditions, one of which is to disclose the source and geographical origin of the biological material in the specification, when used in an invention.
• – A ground of opposition, before the grant of patent as well as after the grant but before the expiry of the patent, is that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention.
• The above ground of opposition is also a ground of revocation.
• Another ground of opposition is that the invention so far as claimed in any claim of the complete specification is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere.
• The above ground is also a ground of revocation.

Traditional Knowledge Data Library (TKDL)

After successful challenges to patents on traditional knowledge, and many such cases emerging, the Traditional Knowledge Data Library (TKDL) was set up in 2001 as a collaboration between the CSIR and the Ministry of AYUSH. The objective of the TKDL is to protect Indian traditional medicinal knowledge from biopiracy and unethical bioprospecting and to prevent misappropriation at International Patent Offices. The TKDL is a searchable database of ancient texts on Indian Systems of Medicines i.e., Ayurveda, Siddha, Unani and Sowa Rigpa as well as Yoga which have been translated into 5 international languages, namely, English, Japanese, French, German and Spanish, and classified as per international standards. Access to TKDL is available to 13 International Patent Offices. As per the data available on the website of TKDL, 241 patents have been successfully overturned in various International Patent Offices since June 2009.

Protection of Traditional Knowledge Bill, 2016

The Protection of Traditional Knowledge Bill, 2016 (“the Bill”) was introduced in the 16th Lok Sabha as a private bill by Dr. Shashi Tharoor on March 10, 2017. The objective of the Bill is “to provide for the protection, preservation, promotion and development of India’s Traditional Knowledge and for matters connected therewith or incidental thereto.” Although the Bill has attempted to define traditional knowledge and envisages setting up authorities at the national and state level to advise the government on patents made on traditional knowledge, there are several issues as well.

• : Section 2(ix) defines ‘traditional knowledge’ and prescribes that such knowledge is passed on from generation to generation for at least 3 generations. Traditional knowledge, in most cases, is not passed down by documents but orally or by other traditional methods such as, through song, dance, paintings and so on. Hence, it will be difficult to prove that the traditional knowledge has been passed on to “at least 3 generations”. Further, the definition excludes traditional knowledge covered by any law. Considering the importance of traditional knowledge, the need to protect it and the rising cases of biopiracy, traditional knowledge needs special attention. This Bill need not be in derogation of any law but rather should be in addition to provisions of any other law which covers traditional knowledge.
• : Section 3(1) stipulates that for traditional knowledge that is obtained, derived or practiced solely within a state, the concerned State Government will be the custodian of the traditional knowledge, and in all other cases, the Central Government. This goes against the very ideals of providing protection to traditional knowledge. To provide protection means to protect the way of life of indigenous communities. As such, making the Government the ‘custodian’ deprives ownership rights to the very people who had originally developed the traditional knowledge and have been practicing it from time immemorial.

Further, Section 3(2)(ii) states that the appropriate Government may transfer the custodianship of the traditional knowledge to a community, provided that the community sufficiently proves that the traditional knowledge is exclusively practiced by that community, among other things. This is logically not possible as traditional knowledge may be practiced by many different communities, with or      without variations. Traditional knowledge is also a means of livelihood for many people      across the country who may not belong to a specific community. Instead, the Government can be a custodian until the rightful communities are recognized by way of issuing a public notice regarding traditional knowledge. After compilation of the communities, another public notice can be issued inviting objections. The TKDL facility can be used to speed up this process.

• : The Bill envisages a National Authority and State Boards for the fulfilment of the objectives of the Bill, namely the “preservation, protection and promotion” of traditional knowledge. Traditional knowledge has no definite boundaries and is a vast ocean of knowledge in India. Hence, a single authority will not be able to achieve the objectives set out in the Bill. For “preservation”, the function of the National Authority and the State Boards should be to identify the traditional knowledge and their rightful owners. This information should be uploaded and updated to the TKDL. For “protection”, a quasi-judicial body should be set up which would look into disputes over ownership of traditional knowledge, sharing of access to traditional knowledge and of benefits derived from using such traditional knowledge, initiate action against biopiracy and unethical bioprospecting in coordination with TKDL, and so on. “Promotion” requires spreading awareness about protecting traditional knowledge and indigenous communities. A wing can be dedicated to this by running awareness programs and collaborating with environmental groups, NGOs and individuals.

Conclusion

India is a diverse nation with different cultures, languages and communities. There are many different tribes which still live and work as their ancestors did centuries ago. This makes India a rich source of traditional knowledge. However, the traditional knowledge being undocumented, it is facing exploitation in the form of biopiracy. The Patents Act, 1970 offers some protection. The TKDL is a good initiative to codify traditional knowledge, but this is a long and continuous process. A separate legislation should be enacted for protection and preservation of traditional knowledge.