ipr with reference to traditional knowledge

Ipr and Traditional knowledge

1. INTELLECTUAL PROPERTY RIGHTS: NEED FOR A SUI GENERIS REGIME FOR NON-CODIFIED TRADITIONAL KNOWLEDGE WITH SPECIAL REFERENCE TO PREVENTION OF BIOPIRACY IN INDIA  

2. Introduction Knowledge has since the evolution of mankind been treated as the most cherished possession of humanity. In the ancient times knowledge was purely a subject matter of fame and reputation which disseminated with no returns. But various developments took place in the evolution of societies which recognized knowledge as a property and rights began to be conferred on the knowledge holder as intellectual property rights. When the society transformed from pre industrial into an industrial one, the developed countries moved towards a technological orientation leaving behind traditional practices and knowledge and embraced newer practices and ideas having much commercial potential. But it was evidenced in the past decades that the Traditional Knowledge and the practices possess answers for many problems even where modern science and technology have failed.

3. In the present research paper, the researcher will identify the relevance and importance of Traditional Knowledge and significance of Traditional Knowledge in the Indian Scenario and factors that threaten the maintenance, preservation and conservation of Traditional Knowledge and analyse the sufficiency or insufficiency of the existing national legislations for protecting Traditional Knowledge and means for the prevention of bio piracy and misappropriation of Traditional Knowledge

4. RATIONALE FOR PROTECTING TRADITIONAL KNOWLEDGE Traditional Knowledge is an intangible element of the resource itself that is connected to biological resources. The interests of tribal people, the majority of whom reside in developing nations, have suffered greatly as a result of ongoing policies of globalization, liberalization, and the extension of the international patent regime to third-world countries in the fields of biotechnology, biodiversity, and the entry of multinational corporations into the global market. Bio-Piracy: A key factor in the erosion of Traditional Knowledge Bio piracy is the false claim to invention by western world and scientists. It is the institutionalized theft by the rich from the poor. Bio piracy refers to the process through which the rights of indigenous cultures to these resources and knowledge are erased and replaced by monopoly rights for those who have exploited indigenous knowledge and biodiversity. Patents based on biopiracy divert biological resources away from local communities to global markets creating scarcity and resource poverty, taking the resource beyond people's access. Biopiracy allows the market control to shift to the ‘PIRATES’ who then exclude others from market access through the exclusion built into intellectual rights.

5. Instances of Biopiracy in India: Turmeric Biopiracy Case: In 1995, two expatriate Indians at the University of Mississippi Medical Centre (Suman K. Das and Hari Har P. Cohly) were granted a US patent on use of turmeric in wound healing. The CSIR, India, filed a re-examination case with the USPTO (United States Patent and Trademark Office) challenging the patent on the grounds of existing of prior art. Council for Scientific & Industrial Research (CSIR) argued that turmeric has been used for thousands of years for healing wounds and rashes and therefore its medicinal use was not a novel invention. Their claim was supported by documentary evidence of Traditional Knowledge, including ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association. The US Patent and Trademark Office upheld the CSIR objections and cancelled the patent. The turmeric case was a landmark judgment case as it was for the first time that a patent based on the Traditional Knowledge of a developing country was successfully challenged. The US Patent Office revoked this patent in 1997. Basmati Rice Biopiracy case Rice Tec. Inc. had applied for registration of a mark “Texmati” before the UK Trade Mark Registry on the basis of its US Patent No.5, 663,484 granted by US Patent Office to Rice Tec on September 2, 1997. Evidence from the Indian Agricultural Research Institute (IARI) Bulletin regarding Basmati rice was used against claims. The evidence was backed up by the germplasm collection of Directorate of Rice Research, Hyderabad since 1978. Eventually, a request for re-examination of this patent was filed on April 28, 2000. Soon after filling the re-examination request, Rice Tec chose to withdraw claims.

6. INADEQUACY OF THE PRESENT LEGAL SYSTEM TO PROTECT TRADITIONAL. KNOWLEDGE; ARE THE PROVISIONS OF BIODIVERSITY ACT SUFFICIENT TO PROTECT TRADITIONAL KNOWLEDGE? The current IPR system cannot protect traditional knowledge for three reasons. First , the current system seeks to privatize ownership and is designed to be held by individuals or corporations, whereas traditional knowledge has collective ownership. Second, this protection is time-bound, whereas traditional knowledge is held in perpetuity from generation to generation. Third , it adopts a restricted interpretation of invention which should satisfy the criteria of novelty and be capable of industrial application, whereas traditional innovation is incremental, informal and occurs over time. A Sui generis, or alternative law, is therefore an utmost necessity to protect traditional knowledge.

7. A BRIEF analysis of the Biodiversity ACT,2002 In 2002, about 8 years after India became a signatory to the CBD, the Indian Parliament enacted the Biological Diversity Act, 2002 (BD Act), implementing as national law the provisions of the CBD. A key focus of this legislation as outlined in the “aims and objectives” of the legislation was to ensure the “fair and equitable sharing of the benefits arising out of the use of biological resources”. In a manner of speaking, the legislation nationalizes India’s biological resources because the legislation in effect proclaims the sovereignty of the Indian state over all biological resources located within its territory. In doing so, India has reversed the fundamental principle of how natural resources were considered to be the common heritage of all mankind, without recognition of international boundaries

8. Given the framework imposed by the BD Act, it would not be an exaggeration to say that the Indian legislation in effect “nationalizes” biological resources and knowledge related to those biological resources, including TK held by indigenous people, because it is only bureaucrats sitting in the NBA who can decide the terms and conditions of benefit sharing. There is a gratuitous provision in the legislation that requires the NBA to ensure that “equitable benefit sharing” takes place on “mutually agreed terms and conditions between the person applying for such approval, local bodies concerned and the benefit claimers.” But how can benefit claimers enter into a mutually beneficial deal when it is the NBA and not the benefit claimers who have the final say on how the resources are accessed .Perhaps the most troubling aspect of the BD Act is that it does not provide for any statutory guidance on the issue of “equitable benefit sharing.”

9. ROLE OF TRADITIONAL KNOWLEDGE DIGITAL LIBRARY IN PREVENTING BIOPIRACY Traditional Knowledge Digital Library gives legitimacy to the existing Traditional Knowledge and enables protection of such information from getting patented by the fly-by-night inventors acquiring patents on India’s Traditional Knowledge systems. So far over 2.5 lakh formulations of Ayurveda, Siddha, Unani and Yoga have been documented into the Traditional Knowledge Digital Library on over 34 million pages of information, over a period of more than 9 years at an estimated cost of over Rs 7 crores. During the process, traditional formulations from 259 books (151 books on Ayurveda; 33 books on Unani; 137 books on Siddha; and 38 books on Yoga) have been transcribed. India is signing agreements with other Patent offices for access to the Traditional Knowledge Digital Library database. These agreements are enabling search by international patent offices to prevent bio-piracy of India’s Traditional Knowledge.

10. CONCLUSION The need of the hour is to develop a sui generis regime in case of Traditional Knowledge that is, a legal regime “of its own kind” which is specifically adapted to the nature and characteristics of Traditional Knowledge.  measures enacted so far in countries like India, like the BD Act, have created a maze of regulations that are lacking in predictability. The establishment of a sui generis regime poses, in fact, many complex conceptual and practical issues like definition of the subject matter of protection; requirements for protection; extent of rights to be conferred; title-holders (individuals/ communities); modes of acquisition, including registration; duration and enforcement measures; etc. For codified systems and formulations of Traditional Knowledge, the Traditional Knowledge Digital Library like databases are expected to play a major role in preventing bio-piracy but for the non-codified formulations of the Traditional Knowledge like folklore practices, tribal practices etc, there is an urgent need of innovative regulations in the form of ‘Petty Patents’ and a ‘Sui generis’ system for protection and promotion of our Traditional Knowledge accompanied with some National level programs like the initiative taken by the National Innovation Foundation so that the potential of noncodified Traditional Knowledge practices can be identified, documented, standardized and optimally utilized to the benefit of the whole mankind. the current Indian legal framework to protect TK related to biological resources needs a serious rethink. A rational and predictable framework appears to be a distant dream as long as policymakers fail to identify a strong theoretical foundation for the protection of such rights. Countries like India and Brazil, which have been declared mega-biodiversity hot spots, have a lot to offer to the world through their biological resources. Legislations like the BD Act will end up having a chilling effect on research in these countries. The aim of any new policy initiative in this regard should be to balance the need for future research with the need to protect communities with access to TK. The barriers to sharing biological resources across international boundaries must be simplified for the sake of scientific research and mankind.