Indian traditional knowledge finds due recognition

By Abhai Pandey, Lex Orbis IP Practice
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Traditional therapies and modes of treating illnesses have received renewed interest around the world over the last few years. Such traditional knowledge often embodies the knowledge, practices, indigenous methods of treatment and folklore of diverse communities that have typically been transmitted orally from one generation to another and are unique to a given geographical region. With the evolution of global standards of IP protection, it has become necessary to protect and preserve these traditional treasures from misappropriation and bio-piracy.

Abhai Pandey,Lawyer,Lex Orbis IP Practice
Abhai Pandey
Lawyer
Lex Orbis IP Practice

India achieved a significant milestone in this regard last year; by digitizing entire texts of roughly 200,000 traditional medical formulations, transforming them from Sanskrit, Arabic, Persian, Urdu and Tamil texts into one traditional knowledge digital library (TKDL) in English. An important aspect of this documentation is that drug companies will now be unable to base their preparations on ancient formulations without permission and the communities holding this knowledge will derive due benefit from it.

The Centre for Scientific and Industrial Research (CSIR) together with the Ministry of Health & Family Welfare’s Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH) was instrumental in creating this library from information in the public domain. The expensive lessons learnt from the revocation of patents on neem and turmeric prompted the creation of this digital library. It contains text-searchable English-language translations of these sources and thus documents on prior art that allow examiners to search the extensive database to prevent misappropriation. Further, about 200 yoga postures are set to be included in the database. The European Patent Office was granted first access to this database, followed by the US Patent and Trademarks Office (USPTO), which was recently allowed access. This has enhanced the importance of the database, which earlier was thought to be purely of academic importance.

Although the USPTO has access to many other traditional databases for prior art searches, including dictionaries, formularies, handbooks, and historical and classical works, the TKDL is the single largest database consisting of compilations from Ayurveda, Unani and Siddha forms of medicine. The CSIR has also offered to provide training to USPTO examiners and staff to help them use the TKDL tools for search and examination purposes. In the words of World Intellectual Property Organization (WIPO) director general Francis Gurry: “It is a product that can make available to patent offices around the world on a confidential basis … detail of traditional knowledge to assist in preventing the granting of patents over that traditional knowledge by unauthorized parties. It is also a basis on which to establish potential collaborative arrangements with private sector or industry to actually use the traditional knowledge in practice.”

The USPTO has also urged other countries to compile their traditional knowledge and make it accessible to the USPTO. On an international level, it is also expected that there may be some development in the creation of a combined database of traditional knowledge under the aegis of WIPO. IP rights holders may have a clearer picture of this project once talks of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC), which have been stalled for months, finally resume. The committee was formed by the annual WIPO General Assemblies to negotiate the text of an “international legal instrument (or instruments) which will ensure the effective protection of” genetic resources, traditional knowledge, and traditional cultural expressions. Two substantive texts were introduced; one on traditional knowledge and other on traditional cultural expressions.

The first point of victory reported for Indian traditional knowledge after the launch of the TKDL was at the European Patent Office (EPO) through the blocking of a patent by a Spanish company called Perdix, for a skin cream, prepared from melon extracts to treat leucoderma. Perdix used vegetable ingredients such as melon, bay rum and lemon, which when employed on white patches of skin, resulted in the regeneration of melanocytes.

This mode of treatment was commonly used in the Unani system of medicine in India and has been used by hakeems (Muslim physicians) for years. After studying Indian documents, the EPO confirmed “evidence of prior art”, and decided against granting Perdix the patent for the anti-vitiligo cream. This happened in a record time of three weeks, compared with the turmeric and neem cases, which had taken two and five years respectively.

All this bears colossal significance in the growing recognition of the TKDL as a source of legitimate and effective information, which can prevent bad patents from being granted.

Abhai Pandey is a lawyer with Lex Orbis IP Practice, a law firm specializing in intellectual property issues.

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