Traditional Knowledge Patenting in Context of the Turmeric Case

 

Traditional Knowledge is a living body of knowledge that has developed through many generations in a small culture. It cannot be protected traditionally due to the unoriginality of its preservation and the absence of the limited periods of intellectual property protection, to put it in a lighthearted way. As a result, it has a living nature.

Traditional Knowledge refers to practices that are regularly shared informally between generations as a sort of information with ancient cultural origins but are not covered by traditional intellectual property regulations. India has significantly contributed to the global effort to secure this material by establishing Traditional Knowledge Digital Library (TKDL) Access (Non-Disclosure) Agreements with several international patent offices, including the USPTO.

Turmeric Case

A. The applicants' arguments

By giving the patient an effective dose of turmeric either orally or topically, the inventors claimed to have created a technique for aiding the healing of a wound in a patient.

 

B. CSIR's justifications

The CSIR petitioned the USPTO to cancel the turmeric patent in the position as an interested party with the right to initiate reexamination proceedings in order to demonstrate the absence of innovation in the patented invention. It was challenging to find written material on the use of turmeric powder topically and orally for wound healing, despite the fact that the different forms and applications of turmeric were long known to every Indian family.

C. USPTO ruling

The data provided by CSIR demonstrated a glaring absence of innovation, non-obviousness, and creative step, which are necessary prerequisites for any invention to be issued, and the USPTO cancelled the turmeric patent on the grounds of previous art. Moreover, the USPTO's decision that the paste and turmeric powder were comparable demonstrated that the "Person Having Ordinary Skill in the Art" test (PHOSITA), which asks whether the invention would have been evident to a "Person Having Ordinary Skill in the Art," had been met.

 This guideline aims to protect the patentability of valuable ideas while preventing the patentability of unimportant ones.

Biopiracy as a new form of commercial exploitation

Traditional knowledge based on biochemical/genetic resources has been commercially exploited since the advent of biotechnological innovation and the mushrooming of pharmaceutical patenting in an effort to assert control over what has already been accepted in common parlance as traditional knowledge by creating a false sense of novelty and non-obviousness.

The term "appropriation of the knowledge and genetic resources of farming and indigenous communities by people or organizations seeking exclusive monopolistic control" (often patents or plant breeders’ rights) started to be used to describe this phenomenon, which came to be known as "biopiracy."

The USPTO's decision to give patenting rights to turmeric-based wound healing procedures was strongly criticized and referred to as an act of biopiracy in the Turmeric Case. Upon evaluation, the USPTO took into account the specifics of the conventional wisdom that connected to the centuries-old use of turmeric as a wound-healing agent in Indian families.

Pioneering the idea of protecting traditional knowledge
Ancient literature, history books, and conventional Ayurveda medical procedures were only a few of the numerous pieces of evidence submitted throughout the hearing in support of the claims made against the patent award. It was unequivocally proven that Curcuma longa (Zingiberaceae), or turmeric rhizomes, were frequently utilized in Indian families for their capacity to treat wounds.

These proofs made it clear that traditional knowledge existed and supported the revocation of the patent certificate. They also demonstrated that there was no concrete evidence of novelty or non-obviousness with respect to the alleged discovery made by the two scientists who applied for the aforementioned patent.

 In prior instances, a contentious argument concerning the ethics of IP and patent rights between the European Patent Office and the Indian government arose in relation to the use of Neem-related compounds in pharmaceutical products for fungicidal treatment. Since that neem has been used as a traditional therapy for fungicidal treatment in Indian families for millennia, the commercial exploitation of neem under patent law was considered a kind of biopiracy.

Patentability of Traditional Knowledge

In light of patents, traditional knowledge has been described in a different way. It may be argued that this information, whether recorded or unwritten, needed action inside an already-existing community or group of communities. Yet by preserving traditional knowledge, another large firm will be able to commercialize it at the expense of the indigenous community or the traditional knowledge holder, and it will also serve as proof to prevent appropriation. Therefore, Traditional Knowledge cannot be recognized as a unique and innovative invention in accordance with Section 3(p) of the Patents Act of 1970.

As a former form of intellectual property must be in the Public Domain in order to qualify as Traditional Knowledge, monopolizing such knowledge is against the Patents Act. The TKDL was then founded for documentation and eventual protection as a result of this. Nonetheless, ownership rights for the exploitation of such intellectual property through patenting arise in circumstances of unrecorded TK. It is simple to demonstrate the uniqueness of an invention because to the lack of legislation protecting undocumented traditional knowledge, a problem that the Indian Patent Office attempts to address by publishing a list of TK that have been applied for but are still awaiting recognition.

In order to prevent the patenting of traditional knowledge, India took steps to collect, share, and save all such material in an electronic library called the Traditional Knowledge Digital Library (TKDL). The TKDL contains all of the scientific information that is categorized in respect to foreign patents.

Traditional Knowledge will be protected by patent law even if it hasn't been written down. In an effort to solve this issue, the Indian Patent Office issued a circular indicating that any objections can be lodged at the Patent Office and that the pending patents in the pertinent field will be made publicly available online.

Balance between Community Interests and Individual Profits

The Biodiversity Act's section 2a with 6 introduces the idea of benefit sharing to strike a balance between personal gain and communal good (2). Each innovation or product made with knowledge obtained from prior knowledge for commercial gain is required by law to give some sort of commission to the people claiming the knowledge.

• The ‘Jeevani’ and ‘Kani’ Tribes case:

In this case, a treatment manufactured from Kerala’s Trichopus Zeylanicus (Arogyapaacha) is being patented. The Tropical Botanic Garden and Research Institute (TBGRI) in Kerala submitted the patent application in an effort to boost users' energy levels and immune systems. This ancient drug, which the Kani Tribe calls "JEEVANI," is used by them. Benefit sharing was employed, and the tribe was compensated for creating the drug.

But, in the current context, this is not relevant. As a result, "Beneficial quantities and Usage" of turmeric cannot be patented because they are not depicted visually. This causes the resulting gap in this circumstance to be filled. The "Kani," "Yoga," or "Saganeri" examples show that benefit sharing is possible when there is a specific connection to a community or indigenous group. Because of this, TKDL has come under fire for asserting Indian origin for commonly used herbs and spices. This needs to be stopped by developing a robust legal standard, as seen in the Turmeric case, for the demonstration of traditional knowledge, as doing so will result in the restriction of innovation and progress.

Indian Scenario and Precedents on Traditional Knowledge Protection

Traditional knowledge cannot be granted a patent since it is classified as a non-invention under Section 3(p) of the Patent Act of 1970. Moreover, GI registration can serve as a covert method of preserving local Native groups' traditional knowledge (e.g. Palani Panchamirtham and Mizu Betel Vine). In the case Institute for Inner Studies v. Charlotte Anderson, it was determined that the idea of Pranic Healing, a branch of yoga, was part of Indian traditional knowledge and was thus ineligible for patenting under Section 3 due to public knowledge and lack of innovation (p). The Delhi High Court prohibited the patenting of microorganisms in Vandana Shiva v. Union of India since the patent was based on conventional knowledge of the living form and of its use. It lacked novelty and was already in prior us. Moreover, the Supreme Court stated in Maharshi Mahesh Jogi v. State of M.P. that traditional knowledge only has validity if it can be objectively examined using the senses.

Conclusion

Benefit sharing was conceivable in circumstances when there is a special tying to a community or indigenous group, as evidenced in the "Kani," "Yoga," or "Saganeri" examples. A specific culture was linked to traditional knowledge. The property in question was not indigenous to only one land, as was the case in many instances, such as in bio-piracy, as was observed in the current case as well as the "Neem Case" and "Basmati GI case," therefore the notion of benefit sharing was not feasible.

Because of this, TKDL has come under fire for claiming Indian origin for commonly found herbs and spices. This needs to be stopped by developing a strong legal standard, as seen in the Turmeric case, for the demonstration of traditional knowledge, as doing so will prevent innovation and progress from moving forward.

 

Apr 26, 2023