DELINEATING TRADITIONAL KNOWLEDGE DIGITAL LIBRARY AND PATENT REGIME: EVOLVING PARADIGMS By - Chaitanya Arora

DELINEATING TRADITIONAL KNOWLEDGE DIGITAL LIBRARY AND PATENT REGIME: EVOLVING PARADIGMS

Authored By - [1] *Chaitanya Arora

Traditional knowledge is a notional concept which is comprised of, “The dense populated  majority of the ecological diversity which has its origin from tropical and sub-tropical vegetation environment.”[2] The genetic varieties of the natural beings which includes animals, microorganisms and plants are the raw findings as products. In addition to these raw findings fail to remain in their raw forms since they are selected yet materialised to improvise their nutritional index by several sect of the society such as farmer and breeders. These processes have already been in existence over thousand years. Such improvisations in the quality index of the raw findings constitute a distinct set of knowledge which leads to a warranted question of who should earn profit of these improvisation since it has community-based understanding of developments and resource investment. 

Definition of Traditional Knowledge has no set of settled frames yet the Anthropologist Johnson had made an attempt in defining the same as a body of knowledge built by a group of people living in close contact with nature. It comprises of a system of classification, a set of findings based upon empirical observations about the ecological setup or environment and a system of self-management that governs resource use. The characteristics of traditional knowledge can be elucidated as:

• Creation over a long period of time in which it has been passed down from generation to generation;
• Constant improvements as new knowledge is integrated to the existing;
• Both creation and improvement of knowledge is a group effort.

Traditional Knowledge is the pool of information created and possessed by community based understanding of natural resources which mostly comprise of medicinal, agricultural and knowledge related to environment which remains in existence as it is transferred through generations within the communities. As evident, the knowledge is meant to be in sui generis system which calls for protection since it forms a pertinent part of the community and its resources which otherwise would be a subject of inevitable exploitation by the stakeholders of other competing entities. Such exploitation is only meant to accrue the knowledge without incentivising the true owner which in this case is community which has brought that knowledge in existence. Traditional knowledge is based on a distinct nature since it ploys a understanding of two different regimes which are public domain and Intellectual property exhibiting features and limitations of both. The requisite to award a property a nature of intellectual nature and inclusion of rights over it requires to meet a set of criteria. Calling Traditional Knowledge under the similar ambit is till some extent disputed since it fails to furnish features such as innovation, individual owner and moreover since it becomes a part of public domain where it has a lot of apprehension of exploitation. 

It is evident that there is no standard definition of Traditional Knowledge keeping patent and other intellectual properties in consonance. The Convention on Biological Diversity, reflects the diverse nature of Traditional Knowledge when it refers to as,

". . . knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles."

The WIPO IGC has suggested that TK could be characterized as referring:

‘...to the content or substance of knowledge that is the result of intellectual activity and insight in a traditional context, and includes the know-how, skills, innovations, practices and learning that form part of traditional knowledge systems, and knowledge that is embodied in the traditional lifestyle of a community or people, or is contained in codified knowledge systems passed between generations. The knowledge is traditional only in the sense that it is part of the customs and cultural traditions of the community that has developed and maintains it.’

Traditional Knowledge Digital Library

“The Traditional Knowledge Digital Library is an collaborative step and shaped as a project endorsed by Ministry of Science and Technology and the Department of AYUSH which is an operative entity of Ministry of Health and Family welfare. It is maintained and implemented by CSIR. The Digital Library elucidates the information as a pool and provides information on Indian Traditional Knowledge which is alleged to be in existence but remains in a form of or a condition which is incomprehensible by the agencies which examine patents and hold authority to grant or reuse the claims. This ambiguity does not compliment the sole purpose of existence of traditional knowledge at first place. Thus the understanding of the whole set up Traditional Knowledge Digital Library bridges the gap between Traditional Knowledge in different forms and languages and formats to make the claims comprehensible to agencies in operation.[3] The objective of this se up is to portray attempts made by transactional corporations and existing traditional knowledge in the tune of protection.”

The advancement of the concept of Traditional Knowledge Digital Library, attempts to patent Indian Traditional Knowledge never stopped though, incidence of biopiracy went down since its launch.  The recent examples of initial grant of patent by the EPO to Monsanto for Closterovirus Resistant Melon Plants and its subsequent revocation not at Traditional Knowledge Digital Library L’s behest testifies its failure in preventing biopiracy of Indian TK. It was reported that the patent was based on traits taken from Indian indigenous, melon varieties.  It is based on Indian Traditional Knowledge have been foiled due to TKDL. Hence, any attempt to solely credit it is preposterous. This is because Traditional Knowledge Digital Library’s mechanism is not bereft of defects, inadequacies or drawbacks which undermine its effectiveness in preventing Biopiracy of Indian Traditional Knowledge.

Traditional Knowledge Digital Library and Patent

The legal system is employed for the protection of technical solutions that square measure industrially applicable, universally novel and involve an original step. Indian legal system grants rights to the one that invents any new machine, process, article of manufacture or composition of matter, biological discoveries etc., which fits to the factors of higher than protection. The patent holder has Associate in Nursing privilege to limit others from creating, using, selling, or distributing the proprietary invention while not permission. usually the term of protection offered by the Indian Patent Act, for a proprietary invention is twenty years from the date of filing of Associate in Nursing application.

India amended its Patent Act, 1970 in 2002 and 2005 to fulfil its Trade connected Aspects of holding Rights (TRIPS) obligations. for example, the term of patent was created to twenty years from seven years, that came into force on twenty could, 2003. within the context of patenting biotechnological inventions, 2002 change supplemental section three (j)43 to the Indian Patent Act 1970. This section such that plants and animals, and any a part of a plant or animal (excluding micro-organisms, however as well as seeds) aren't patentable. Likewise, plant varieties, species and primarily biological processes used for the assembly or propagation of plants and animals were additionally thought of un- patentable.

The Indian Patent system has always been under undermining notions since it fails to prevent misappropriations of Traditional Knowledge & has always been subject of criticism. It I taken as an imperative that the positive ends of protection of Traditional Knowledge cannot be achieved or in a sense it cannot be accomplished through the patent mechanism since this system is only a defensive measure but does not protect the whole concept of Traditional Knowledge per se. The major issues which act as a sole basis of whole programme is that Traditional Knowledge is not documented yet it is transferred through generations orally. In absence of a standard document procedures, patents are usually made subjects of those parties which are not true owners of the claims or in other words who do not own the claimed subject traditionally. Also, the sharing of benefit mechanism also fails to accomplish its true sense.

The averment of inefficiency of the Indian Patent system in protection of Traditional Knowledge is endorsed through several researches as, one of them is that the Indian Patent law does not provide with a proper definition of patentable invention. The authoritative agencies in India are granting patents to every other applicant whenever its prima facie seem to be complimenting patentable invention. In addition to such a finding the problem based on provisions of Amendment of 1970 Act. This is because the blame of granting patents on a wide base should not be given to the patent authorities alone, but also to the multiple provisions enshrined in the amendments to the Patent Act.

The flawed machinery of the Indian Patent system is further compounded by the concept of prior art in order to protect TMK. Chief Justice Vijender Jain (Punjab and Haryana High Court, India.) has expressed his opinion on this in a seminar:

“In recent years concerns have been expressed in relation to the recognition of TMK as prior art. Patents have been granted for TMK related inventions which do not fulfil the requirements of novelty and inventive step when compared with the relevant prior art. This prior art consisted of TMK that could not be, identified by the patent granting authority during examination of the patent application. The term prior art generally refers to the entire body of knowledge which is available to the public before the filing date of an application for certain industrial property titles, principally patents, utility models and industrial designs. The identification of prior art constitutes a cornerstone for the substantive examination of applications for the titles, since requirements such as novelty and inventive step are established by comparing the claimed subject matter with the relevant prior art.”

As stated the concept of the current patent system is to develop a new knowledge for prosperity, disclosure, acknowledgement and to compliment incentive theory which is getting diluted. However, it bolsters monopolization of new knowledge for exploiting mankind. Need of the hour is to grant patents in a way that serves the public interest. Traditional Knowledge is the result of the hard work of indigenous ancestors and must be used for the benefit of humanity. Thus, in this competitive world of patents, it needs to be protected. Therefore, in summary, the above discussed opinions make the case that the Indian Patent system is not adequate enough to protect TMK. However, the above discussed opinions are just the starting point to build the argument; following chapters will elaborate the problem in the patent system, exemplified with different case studies of misappropriation of TMK.

Conflicting Heads of Traditional Knowledge

Digital Library & Patent

In order to serve the notion of Traditional Knowledge and preserve the same it is pertinent to locate the stakeholders of the knowledge. Who owns Traditional Knowledge? Whether saying Humanity suffices the purpose, the habitat in which the resources are located, a specific group of people or an individual? In lieu of absence of appropriate answer of the same, the propagation of the concept of traditional knowledge is questionable in itself. Hansen and Following the discussion, VanFleet’s research on the ownership of Traditional Knowledge, offers a precise answer. They contend that,

“the knowledge holders are the people who hold or use the knowledge. The holders of the knowledge can be an individual, multiple individuals or the community as a whole. Further, the knowledge claims can either be held by no individual, an individual, multiple individuals, or a community”.

Hansen and Van Fleet have categorised the knowledge claims as:

• “Known and used by an individual;  
•  Know and used by several individuals or a community, or
• Diffused broadly and in public domain”.[4]

The issue of ownership is very important and must be considered while dealing with biopiracy. Johan has analysed this issue, and states that, the answer to this lies in CBD. CBD clearly states that, “the individual state and its people have right to exploit their own resources pursuant to their own environmental policies”.[5]

The Concept of Traditional Knowledge Digital Library is not only poor in a sense that it fails to furnish its sole purpose but it is also one of the poorly executed projects. Bringing the TKDL involved huge amount of money in translating, digitizing and cataloguing the traditional knowledge existing in India. Though this exercise seems to be worthy it has not resulted in providing great outcome. The Platform of TKDL has not created new knowledge as it has just scanned databases of existing publications and books which are written by others by doing the same it has actually infringed on the copyrights of the original publishers.

Other truth is that the foreign applications has not been rejected because of annals of India’s Traditional Knowledge but because the foreign patent offices raised objections based on evidence gathered from modern scientific literature. In the rare cases only the TKDL has actually been the sole basis of rejection of the application. Moreover, running of TKDL has also not been cheap more than 20 Crores has already been spent on the organization.

TKDL has also flaked criticism because of the confidentiality as the information can only be accessed by foreign patent offices. TKDL has provided a mechanism for defensive protection of Traditional Knowledge. It keeps Traditional Knowledge within the public domain rather than keeping within the domain of community people that evolved it.

Another criticism of TKDL is that the Indian Patent offices does not have access to TKDL and only the foreign patent offices are allowed to use. It brings into an absurd situation where it is deemed necessary to o protect Europeans and Americans from the infringement and the nationals of our own country are treated as second class citizens and it is not deemed necessary to protect the Indians from bad patents.

1. Copyright Infringement – It was earlier assumed that the TKDL is more like an encyclopedia where the database was prepared by researching the various TK databases and previous history. But the fact is that TKDL is basically scanning, translating and making the material available in digitized form. If we go by copyright law then such acts are clearly infringing the copyrights of the authors who have written the books or have compiled the information on traditional knowledge prevailing in the society.

1. Confidentiality – Confidentiality of TKDL is another issue. Access to the TKDL is only given to foreign patent offices whereas no access has been provided to Indian patent offices it has been kept confidential. There is a conflict of interest as Public is one of the stake holders and it is their money which is been used they cannot be devoid of using it. Similar Databases in China and Korea have provided access to their nationals without any restrictions whatsoever;

1. Review of Translation of TKDL – In TKDL various books which were of different language not commonly used were translated so that everyone can have access of the same and understand what all are already covered in the Traditional Knowledge. It is not clear as to what measures were taken to ensure the authenticity of the translations.

1. Independence from CSIR – Traditional Knowledge Digital Library is the initiative of CSIR and it is responsible for operating TKDL. CSIR files a large number of patent applications not even in India as well as in foreign countries. It is highly unlikely that TKDL will ever scrutinize CSIR’s Patent application with same zeal as it is demonstrating in other cases.

Conclusion

The whole system of Traditional Knowledge Digital Library targets Indian systems of medicine and also every other resource available in the public domain which warrants a decent protection model in order to acknowledge the viability of the resources and also to incentivise the true owners of the same.  The whole notion is to document the information on traditionally endorsed understandings on of raw resources which have been polished as per their viability and the information from existing literatures in several languages such as Sanskrit, Urdu, Arabic, Persian and Tamil in digitised format. Another sub-set of the whole system is that it is meant to be made available in five international languages, which are English, German, Spanish, French and Japanese. There have been several successful attempts where India has been successful to brig on cancellation or revocation in as many as 36 applications to patent traditional understanding of medicinal formulations. Understanding the incentivised concept there is no doubt that the whole concept of Traditional Knowledge Digital Library is a good notion which requires better adherence. Yet it calls for improvisation in terms of proper mechanism to deal the acknowledgment theory and incentive theory and advocate that the same should shift from community-based understanding to other form in order to make it a more viable concept.

[1] Author is an advocate practicing in Panipat District Courts

[2] Ameera Haider, Reconciling Patent Law and Traditional Knowledge: Strategies for Countries with Traditional Knowledge to Successfully Protect Their Knowledge from Abuse, 48 Case W. Res. J. Int'l L. 347 (2016)

[3] Seemantani Sharma, Traditional Knowledge Digital Library: "A Silver Bullet" in the War against Biopiracy? , 17 J. MARSHALL  REV . INTELL . PROP . L. 214 (2017).

[4] Stephen A. Hansen and Justin W. VanFleet, Traditional Knowledge and Intellectual Property: A Handbook on Issues and Options for Traditional Knowledge Holders in Protecting Knowledge Holders in Protecting their Intellectual Property and Maintaining Biological Diversity (AAAS, 2003) at 44. 

[5] Johan Ragnar, “Biopiracy, the CBD and TRIPS – The Prevention of Biopiracy”, Faculty of Law, University of Lund (2004)

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