THE TURMERIC CASE
On March 28, 1995 the United States Patent and Trademark Office (USPTO) granted a patent (US 5401504) to two expatriate Indians of the University of Mississippi Medical Centre for a method of promoting healing of a wound by administering turmeric to a patient afflicted with the wound. Turmeric is a plant yielding saffron-coloured rhizomes and has been used by the people of India for ages as a flavour for cooking. It has also been used widely as a colour dye and for cosmetics. Most importantly, turmeric has been used for its medicinal qualities to heal wounds and rashes.
The Indian Council for Scientific and Industrial Research (CSIR) filed a case with the USPTO challenging the patent by providing evidence of “prior art”. CSIR presented an ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association to support their claim that the use of turmeric for medical purposes was known in India for many years and hence its use as a medicine was not a new invention. The USPTO upheld the objection and cancelled the patent on the grounds that it failed to meet the novelty criteria.
WHAT IS TRADITIONAL KNOWLEDGE?
Traditional Knowledge means the development and transmission of the knowledge from generation to generation within a system, held by local individuals, families, lineages or indigenous communities.
THE SIGNIFICANCE OF TRADITIONAL KNOWLEDGE
Traditional knowledge (TK) is integral to the identity of most local communities. It is a key constituent of a community’s social and physical environment and, as such, its preservation is of paramount importance. Attempts to exploit TK for industrial or commercial benefit can lead to its misappropriation and can prejudice the interests of its rightful custodians. In the face of such risks, there is a need to develop ways and means to protect and nurture TK for sustainable development in line with the interests of TK holders. The preservation, protection and promotion of the TK-based innovations and practices of local communities are particularly important for developing countries. Their rich endowment of TK and biodiversity plays a critical role in their health care, food security, culture, religion, identity, environment, trade and development. Yet, this valuable asset is under threat in many parts of the world. There are concerns that this knowledge is being used and patented by third parties without the prior informed consent of TK holders and that few, if any, of the derived benefits are shared with the communities in which this knowledge originated and exists.
HOW CAN WE PROTECT TRADITIONAL KNOWLEDGE?
- Defensive Protection: It aims to prevent people outside the community from getting intellectual property rights over traditional knowledge. It can also be used to protect sacred cultural manifestations like sacred symbols or words from being registered as trademarks.
- Documentation: It helps in preservation, dissemination, use and management of this knowledge rather than for the purpose of legal protection.
- Positive protection: It is the granting of rights that empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation.
- The ‘protection’ may be granted to exclude the unauthorized use by third parties of the protected information.
- ‘Protection’ also means to preserve traditional knowledge from uses that may erode it or negatively affect the life or culture of the communities that have developed and applied it.
- While recognizing the market-based nature of IPRs, other non-market-based rights could be useful in developing models for a right to protect traditional knowledge, innovations and practices.
- Provisions under undisclosed information or trade secrets could be invoked to protect traditional knowledge not available in the public domain.
- Geographical indications and trademarks could also be the alternative tools for indigenous and local communities seeking to gain economic benefits from their traditional knowledge.
MEASURES TAKEN IN INDIA
Developing countries need a systematic documentation of traditional medicine for protection purposes, regional and inter-regional information exchange and compilation of the requisite databases etc. To mitigate this problem, the Indian Government has taken steps to create a Traditional Knowledge Digital Library (TKDL) on traditional medicinal plants and systems, which will also lead to a Traditional Knowledge Resource Classification (TKRC). Linking this to internationally accepted International Patent Classification (IPC) System will mean building the bridge between the knowledge contained in an old Sanskrit Shloka and the computer screen of a patent examiner in Washington. This will eliminate the problem of the grant of wrong patents since the Indian rights to that knowledge will be known to the examiner. It is right time that India must evolve a viable and effective mechanism to protect the biodiversity, bio-information and creativity of indigenous communities.
CONCLUSION
The era of globalization has allowed the blatant misuse of traditional knowledge and granting of monopolistic rights to a few in spite of the fact that the traditional knowledge has been known and used for centuries by indigenous groups. Documentation activities undertaken by developing countries like India are worth recognition. However, unless there is awareness and strict measures about respecting and valuing traditional knowledge, corporations can always find a way to commercially exploit the traditional knowledge to their advantage. The main concern of protecting traditional knowledge should include equitable distribution of benefits, conservation concerns, preservation of traditional practices and culture, the prevention of misuse by unauthorized parties of traditional knowledge and promotion of its use and its importance in development.