Consentia on Multidisciplinary Research

GEOGRAPHICAL INDICATIONS & TRADITIONAL KNOWLEDGE

Geographical Indications

Geographical Indications of Goods are defined as that aspect of industrial property which refers to the geographical indication referring to a country or to a place situated therein as being the country or place of origin of that product. Typically, such a name conveys an assurance of quality and distinctiveness which is essentially attributable to the fact of its origin in that defined geographical locality, region or country.  Under Articles 1 (2) and 10 of the Paris Convention for the Protection of Industrial Property, geographical indications are covered as an element of IPRs. They are also covered under Articles 22 to 24 of the Trade Related Aspects of Intellectual Property Rights (TRIPS)  Agreement, which was part of the Agreements concluding the Uruguay Round of GATT negotiations. India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration & Protection)Act, 1999 has come into force with effect from 15th September 2003. It is often considered that geographical indications (GI) can be used to protect traditional knowledge and communities. Hence, many countries, including India, have adopted GI laws. Historically, the concept of GI has evolved from principles such as unfair trade practices, consumer protection against deception, ‘passing off’ (when some products are passed off as authentic GI), and so on. The modern form of GI protection originated in France, where protection was given to products that met the geographical origin requirements and the quality standards associated with these origins. It was hence helpful in protecting the interests of not only the consumers of the product, but also its producers, who could extract some “reputation rent”.

Interface between GI & Traditional Knowledge

Geographical Indications can be applied to tangible manifestos of Traditional Knowledge that can be identified with a geographical region. It gives rights to the community organisations and association of manufacturers of the goods to exploit the GI leading to more equitable and distributed growth potential.  GI law can be used to make a policy that facilitates inclusive growth based on traditional knowledge across geographical regions of the country.

 

Traditional Knowledge

When a knowledgeable old person dies, a whole library disappears.

-African Proverb

Evolution

In layman’s language, traditional knowledge (TK) could be understood as knowledge which has been gathered or accumulated by a community through years of experience, it is often tried and tested over long period of time, it is also well adapted to local culture and environment, the main emphasis of it is on minimizing risks for the community rather than maximizing profits[1]. Traditional knowledge is deep rooted in every community across the globe. Such kind of knowledge system is vital for their well being and for sustainable development. The traditional knowledge system has been developed by the communities to conserve and utilize the biological diversity of their surroundings. It is to be kept in mind that TK is collective knowledge of the whole community and a single individual cannot claim a right over it[2].

 Examples could be taken of the health care systems. World Health Organization (WHO) has stated that 80 percent of the world’s population depends on traditional medicine for its primary health care and Traditional Knowledge is indispensable for its survival. The traditional usage of ‘neem’ and ‘turmeric’ in first-aid, curing rashes, cosmetics is the use of traditional knowledge[3]. In South India the medicinal knowledge of the Kani tribes led to the development of a sports drug named ‘Jeevani’, an anti-stress and anti-fatigue agent, based on the herbal medicinal plant ‘arogyapaacha’. Other examples of usage of traditional knowledge are[4]

  • Use of ‘plao-noi’ by the Thai traditional healers to treat ulcers.
  • Use of the ‘Ayahuasca’ vine by Western Amazonian tribes to prepare various medicines.
  • Use of ‘hoodia’ cactus by the San people to stave off hunger while outhunting.
  • Sustainable irrigation through water systems such as the ‘aflaj’ in Oman and Yemen and the ‘qanat’ in Iran.

Various facets of TK

 

TK system consists of an integrated body of knowledge system which tends to focus on different aspects[5] like:

  • Classification: Local classification and quantification system of plants, animals, soil, water, air and weather.
  • Agriculture : Agricultural farming and crop system, land preparation, crop selection, propagation of plant, sowing, seedling preparation, plant protection method, harvesting, seed storage and processing.
  • Human Health: Nutrition, disease classification system, traditional medicines and herbal remedies in disease treatment, identification of medicinal plants, collection of useful parts or preparation of medicines, storing of medicines.
  • Animal Care: Animal breeding and production, traditional fodder and forage specie and their specific use, animal disease classification and ethno-veterinary medicines.
  • Soil Conservation: Soil conservation practices, use of species for soil conservation and soil fertility, enhancement of practices.
  • Water: Traditional water management and water conservation system, traditional techniques for irrigation, use of specific species for water conservation, aquatic resource management.
  • Agro-forestry: Management of forest lands and trees, the knowledge and use of forest plants and animals and the inter relationship between trees, crops and soil.
  • Plants: As a source of wild food, building material, household tools, minor forest products, fuel wood and medicinal folklore system.
  • World science: Views of the universe and humanity’s place with it, relationship between human and nature, myths, beliefs and customs.

Sources of TK

If we look around in our surroundings, we will find out numerous sources of TK hidden in our villages, countryside, community etc. The main sources could be categorized under the heads of[6]

  • Farmers
  • Community leaders
  • Elder persons
  • Folklore, song and poetry
  • Ancient records
  • NGOs
  • Extension agencies
  • Published materials of different languages

It is also pertinent to note that TK is locally appropriate and specifically adapted as per the requirement of local conditions, it provides a restraint in resources exploitation needed for immediate survival, and it helps in having diversified production system without overexploitation of a single resource. Also, TK is flexible for new interventions and integration of green technological advances and thus, inspires the social responsibilities.

Need for protecting TK and efforts worldwide:

It is difficult for the holders of TK to preserve it, in many cases, the very survival of knowledge is at threat as the cultural survival of the community is at threat owing to modernization and globalization and other factors such as external social and environmental pressures, migration, the encroachment of modern lifestyles and the disruption of traditional ways of life[7]. All these factors deteriorate the traditional means of maintaining or passing knowledge on to future generations.

Either through acculturation or diffusion, many traditional practices, associated beliefs and knowledge has already been irretrievably lost. Thus, a primary need is to preserve the knowledge that is held by elders and communities throughout the world. Lack of respect and appreciation for such knowledge is another difficulty facing traditional knowledge holders. For example, when a traditional healer provides a mixture of herbs to cure a sickness, the healer may not have isolated and illustrated certain chemical compounds and describe their effect on the body in the terms of modern biochemistry, but the healer has, in effect, based this medical treatment upon generations of clinical trials undertaken by healers in the past, and on a solid empirical understanding of the interaction between the mixture and human physiology[8].

Thus, sometimes the true understanding of the value of traditional knowledge maybe overlooked if its scientific and technical qualities are considered from a narrow cultural perspective. With the gradual recognition of the value of traditional knowledge and an exponential growth in the use of traditional knowledge products the greatest threat against it is that of usurpation over-exploitation by commercial entities in derogation of the rights of the original holders.

There are numerous reasons which depict the need to protect the Indigenous Traditional Knowledge[9]

  1. To improve the livelihoods of TK holders and communities- TK is a valuable asset to indigenous and local communities who depend on TK for their livelihood as well as to manage and exploit their local ecosystem in sustainable manner. For example, local communities depend on indigenous crop varieties for sustainable agriculture and for selection of superior genotypes from these.
  2. To benefit national economy- TK has been recognized as a valuable input into modern industries such as pharmaceuticals, botanical medicines, cosmetics and toiletries, agriculture and biological pesticides. Most of industries look for the time tested traditional knowledge information for developing novel products having commercial acceptability. Hence, protecting TK has the potential to improve the economy of many developing countries by greater commercial use of their biological wealth and increasing exports of TK related products.
  3. To conserve the environment – The traditional communities are intelligent and have made agriculture sustainable through their different agricultural practices. They create a balance between the environment and
  4. To prevent biopiracy- Biopiracy refers either to the unauthorized extraction of biological resources and / or associated TK or to the patenting, without compensation of spurious inventions based on such knowledge or resources.

 

Therefore, owing to these setbacks and threats to the conservation of TK, steps have been taken by the world community to protect TK and their holders[10].

  1. In 1992, the Convention on Biological Diversity(CBD) recognized the value of traditional knowledge in protecting species, ecosystems and landscapes, and incorporated language regulating access to it and its use. It was soon urged that implementing these provisions would require revision of international intellectual property agreements.
  2. In 1999, the States who had ratified the CBD requested WIPO to investigate the relationship between intellectual property rights, biodiversity and traditional knowledge. Thus, in the same year WIPO began this work with a fact-finding mission in 28 countries and in the year 2000, it established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC-GRTKF).
  3. In 1994, the UN Convention to Combat Desertification provided for the protection of traditional knowledge in the ecological environments as well as the sharing of benefits arising from any commercial utilization of this TK
  4. The World Health Organization has recognized the relevance of traditional knowledge in the field of medicine as a source of primary health care in the Primary Health Care Declaration of Alma Ata.
  5. The Doha Declaration adopted by the World Trade Organization in the Doha Ministerial Conference, in 2001, instructed the TRIPS Council to examine issues regarding the protection of traditional knowledge.
  6. The International Treaty on Plant Genetic Resources for Food and Agriculture provides for the recognition of farmers rights and the protection of traditional knowledge relevant to plant genetic resources for food and agriculture.
  7. A few countries like Brazil, Costa Rica, India, Peru, Panama, the Philippines, Portugal, Thailand and the United States of America have all adopted sui generis laws that protect at least some aspect of TK (sui generis measures are specialized measures aimed exclusively at addressing the characteristics of specific subject matter, such as TK).

 

The last thirty years has seen lively interpretations and active negotiation about the extent that intellectual property law could (or even should) be utilized to protect indigenous peoples’ knowledge[11]. The World Intellectual Property Organization (WIPO) being the primary international body through which discussions and debates have been filtered[12] has since 2001 hosted a regular meeting, the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), to discuss these issues.[13]

However, despite many national efforts to protect various manifestations of indigenous knowledge, international consensus has yet to be reached about how indigenous peoples’ rights to the protection of cultural knowledge systems can be secured, either within an intellectual property regime or through some other over-arching legislative or policy framework.  This lack of consensus reflects diverse positions within nation states themselves.  Questions around indigenous knowledge protection are unlike any other issues that intellectual property law has had to consider. This is because indigenous peoples’ concerns are not limited to one area but can stretch across every part of the intellectual property spectrum.

 

The bone of contention

Indigenous/traditional knowledge and intellectual property law is a complicated contemporary legal problem. There are multiple perspectives and opinions circulating about what the problems are? Where they manifest? And what needs to happen to alleviate them[14]? Indigenous people argue that they have legitimate rights to control; access and utilize in any way, including restricting others’ access to, knowledge or information that derives from unique cultural histories, expressions, practices and contexts. Indigenous people are looking to intellectual property law as a means to secure these ends.

There are many difficulties that arise at the intersection of indigenous/traditional knowledge and intellectual property law. Intellectual property law promotes particular cultural interpretations of knowledge, ownership, authorship and property. These do not necessarily correspond to or complement indigenous peoples’ understandings about the role and function of knowledge and knowledge practices[15].

 Indigenous peoples’ interests in intellectual property law raise issues that involve both legal and non-legal components. Problems are not always commercial in nature and can involve ethical, cultural, historical, religious/spiritual and moral dimensions. For example, inappropriate use of sacred cultural artifacts, symbols or designs may not cause financial loss but can cause considerable offense to the relevant community responsible for the use and circulation of that artifact, symbol or design.

Example could be taken of several copyright cases in Australia depicting this issue. In the US, questions around the use of Native American names and symbols for team names and logos by sports organizations raise similar issues about inappropriate use[16].

Need for documentation of Traditional Knowledge and Biopiracy

 

The origin of indigenous knowledge can be traced back to the ancient period. People used such knowledge from generation to generation for their livelihood in an unaccounted manner. There are no such written documents for recording and dissemination of such knowledge. Brokensha[17] found that such knowledge system is essential for development. It must be gathered and documented for a particular community. Warren[18] commented that the collection and storage of indigenous knowledge should be supplemented with adequate dissemination and exchange among interested parties using newsletter, journals and other media. In order to develop an indigenous traditional knowledge system, it is essential to prepare a documentation and archival repository.

Traditional Knowledge is integral to cultural identity of the social group in which it operates and is preserved because it is culturally oriented.  “Traditional knowledge” is an open-ended way to refer to tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity[19]. WIPO’s definition of TK includes within its purview indigenous knowledge relating to categories such as agricultural knowledge, medicinal knowledge, biodiversity related knowledge, and expressions of folklore in the form of music, dance, song, handicraft, designs, stories and artwork.

It is not necessary that process leading to the creation of TK be formally documented in the way that much scientific and technological information is recorded. The apparent non- systematic manner of creation of traditional knowledge does not diminish its cultural value, or its value from the point of view of technical benefit. Traditional knowledge is generally associated with biological resources and is invariably an intangible component of such a biological resource[20].

In recent years concern has been expressed in relation to the recognition of traditional knowledge as prior art. Patents have been granted for traditional knowledge related inventions which did not fulfill the requirements of novelty and inventive step when compared with the relevant prior art. This prior art consisted of traditional knowledge that could not be identified by the patent-granting authority during the 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 these titles, since requirements such as novelty and inventive step are established by comparing the claimed subject matter with the relevant prior art.

For example, in 1986, Ayahuasca, a vine native to the Amazon Rain Forest, was patented by Loren Miller, an American scientist and entrepreneur. This plant has been used by healers and religious leaders throughout the Amazon for generations and since time immemorial. Shamans have used Ayahuasca to treat sicknesses, contact spirits, and foresee the future. Many indigenous Amazon tribes also view the plant as a sacred symbol of their religion. The natives and the tribal leaders learnt of the existence of such monopoly right granted several years after it was so granted. In 1999 Antonio Jacanamijoy, the leader of a council representing more than 400 indigenous tribes and groups in South America applied for and obtained a rejection of the ayahuasca patent from the U.S. Patent and Trademark Office. The controversy over the patent generated considerable hostility between the United States and Ecuador. However a substantial issue in question remained unaddressed-whether the rejection was based on the property being prior art, a part of the traditional knowledge or because it was sacred to the indigenous community[21].

Traditional knowledge and Bio-piracy

Apart from depicting the need for documentation of TK, the aforementioned example also depicts Biopiracy of TK. Biopiracy can be defined as the stealing of biomedical knowledge from traditional and indigenous communities or individuals. The term can also be used to suggest a breach of a contractual agreement on the access and use of traditional knowledge to the detriment of the provider, and also applies to bioprospecting without the consent of the local communities[22]. Traditional knowledge has always been an easily accessible treasure and thus has been susceptible to misappropriation. The traditional knowledge, particularly, related to the treatment of various diseases has provided leads for development of biologically active molecules by the technology rich countries. In other words, traditional knowledge is being exploited for bio prospecting. Also Traditional knowledge is often misappropriated, because it is conveniently assumed that since it is in public domain, communities have given up all claims over it.

 Traditional knowledge has always been an easily accessible treasure and thus has been susceptible to misappropriation. The traditional knowledge, particularly, related to the treatment of various diseases has provided leads for development of biologically active molecules by the technology rich countries. In other words, traditional knowledge is being exploited for bioprospecting. Also Traditional knowledge is often misappropriated, because it is conveniently assumed that since it is in public domain, communities have given up all claims over it. Traditional Knowledge includes both the codified as well as non-codified information. Bio-piracy of codified Indian traditional knowledge continues, since, this information exists  in regional languages, and there exists a language barrier due to which the patent offices are  unable to search this information as prior art, before granting patents. Formulations used for the treatment of human ailments from traditional knowledge are time-tested since they have been in practice for centuries[23].

The reliability of the traditional medicine systems coupled with the absence of such information with patent offices, provides an easy opportunity for interlopers for getting patents on these therapeutic formulations derived from traditional medicine systems. The grant of patents on non-patentable knowledge (related to traditional medicines), which is either based on the existing traditional knowledge of the developing world, or a minor variation thereof, has been causing a great concern to the developing world. The vast majority of modern medicines patented by western pharmaceutical firms are based on tropical plants. The most common method to select candidates for detailed testing has  been for western firms to scout tropical societies, seek out established ‘folk’ remedies, and to  subject these to ‘western scientific legitimizing’. In many cases, patents owned by multinationals are largely for isolating the active ingredients in a lab, and going through rigorous protocols of testing and patent filing[24].

The broad development underlying this issue is that, as the reach of the intellectual property system in the global information society extends to new stakeholders, such as indigenous and local communities, their knowledge base, including in particular their traditional knowledge, constitutes an increasingly relevant body of prior art, the effective identification of which is of increasing importance for the functioning of the intellectual property system. Traditional knowledge documentation data constitutes an important form of non-patent literature with specific characteristics. Some of those characteristics may necessitate specialized measures for traditional knowledge data to be adequately integrated and recognized as relevant non-patent literature. The development of new technology and the new use of traditional knowledge based products today is the major threat to the survival of many of these communities[25].

The modern cultural industries as well as the manufacturing industries now commercially exploit the traditional knowledge based products using new technology without the permission and sharing of profits with the communities. It is possible today to bring out new products or find out new use of existing products based on traditional knowledge utilizing the technological developments in the field of biotechnology. This is proved beyond doubt particularly in the field of medicines, agriculture etc. The development of new products or new use of existing products enables the industries to get protection for these products through the formal intellectual property laws.

An effective way of protection TK from exploitation would be Documentation. A division under the state archive may be opened which has a primary role to trace the documents available and collect those sources of information. Although collection of indigenous traditional knowledge is difficult, adequate attention is necessary to convince the indigenous traditional knowledge owners to share their knowledge by protecting their intellectual property. After collecting that knowledge it is essential to record the list of such indigenous traditional knowledge facets available to different parts of the state. The most important responsibilities are to develop documentation of indigenous traditional knowledge in particular library and information centre. The next step is to develop a database or repository of indigenous traditional knowledge. It is required for making a selection and scrutinization of data to be stored in a database[26]. The storage and retrieval of indigenous traditional knowledge is a difficult process which requires classification, indexing and assigning metadata for making the database accessible to the users. While considering the storage, steps may take to consider classification of textual data, graphical, pictorial, audio-visual picture of indigenous traditional knowledge in database. By developing the database is not the end of the process, the library has to prepare the strategy of information services to disseminate information[27].

It is essential to propagate the use of indigenous traditional knowledge for human causes through certain activities such as seminars, workshops, debates, lectures, and exhibitions in which such stories of indigenous traditional knowledge use need to be reflected. Adequate publicity majors need to be taken up so that people are aware about the use of indigenous traditional knowledge in their daily livelihood[28].

Provisions relating to TK under International Treaties and Conventions:

  1. Article 27. 3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) sets out certain conditions under which certain biological materials or intellectual innovations may be excluded from patenting. The Article also contains a requirement that Article 27 be reviewed. In the TRIPs-related Doha Declaration of 2001, Paragraph 19 expanded the review to a review of Article 27 and the rest of the TRIPs agreement to include the relationship between the TRIPS Agreement and the 1992 Convention on Biological Diversity(CBD) and the protection of traditional knowledge and folklore.

  1. The Convention on Biological Diversity(CBD)– signed at the United Nations Conference on Environment and Development (UNCED) in 1992, was the first international environmental convention to develop measures for the use and protection of traditional knowledge, related to the conservation and sustainable use of biodiversity. Significant provisions include-
  • Article 8(j)-Each contracting Party shall, as far as possible and as appropriate:

Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices.

  • Article10(c): Sustainable Use of Components of Biological Diversity

 Each Contracting Party shall, as far as possible and as appropriate- Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements

  1. United Nations Declaration on the Rights of the Indigenous People[29]– it was adopted by the United Nations General Assembly during its 61st session at UN Headquarters in New York City on 13 September 2007. Being a General Assembly Declaration it is not a legally binding instrument under international law. The Declaration sets out the individual and collective rights of indigenous peoples, as well as their rights to culture, identity, language, employment, health, education and other issues. It also “emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations”

 

  • Article 31– Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

Indian efforts

Huge resources of Traditional Knowledge, we have been nurturing a tradition of civilization over a period of about 5,000 years. Our ancient scriptures consist of the four Vedas, 108 Upanishads, 2 epics, Bhagavad-Gita, Brahma sutras, eighteen Puranas, Manusmriti, Kautilya Shastra and Smritis. Biologically speaking, India is one of the 12 most biodiverse countries of the world. With only 2.4 percent of the world’s land area, India accounts for 7 to 8 percent of the recorded species of the world. India’s diversified agro-climatic nature is a blessing. The whole world has 26 agro-climatic zones and India alone has 16 agro-climatic zones. India’s diversified agro-climatic zones start from the Trans-Himalayan region to the coastal areas of Kerala, Andaman and Nicobar, which are home to a varied range of medicinal plants like herbs, shrubs, tubers, mangroves and rhizomes. The Botanical Survey of India and the Zoological Survey of India have recorded over 47,000 species of plants and 81,000 species of animals[30].

This multitude of natural wealth has created a renewed interest in the traditional medicinal system, which includes the Unani, Yoga, Ayurveda, Homeopathy and Siddha systems. The Ayurveda is the oldest and most effective of these alternative systems of medicine. The ancient scriptures of the Ayurveda are full of instances where herbs with medicinal properties were used not only for curative purposes but also for increasing physical and mental efficiency. Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture, and forestry. Many widely used products, such as plant-based medicines and cosmetics, are derived from traditional knowledge. Other valuable products based on traditional knowledge include agricultural and non-wood forest products as well as handicrafts.

India is a party to the Convention on Biological Diversity (CBD), which came into force in December 1993. The CBD offers opportunities to India to realize the benefit of these resources. India has already enacted an Act i.e. Biological Diversity Act, 2002 to provide for protection of biological diversity, sustainable use of its components and equitable benefit sharing arising out of the use of the biological resources. It addresses the basic concerns of access to, collection and utilization of biological resources and knowledge by foreigners and sharing of benefits arising out of such access. The legislation also provides for a National Authority, which will grant approvals for access, subject to conditions, which ensure equitable sharing of benefits[31].

The main intent of this legislation is to protect India’s biodiversity and associated knowledge against their use by individuals/ organization without sharing the benefits arising out of such use and also to check bio-piracy. The legislation provides for a federal management structure with the National Biodiversity Authority (NBA)[32] at the apex and Biodiversity Management Committees (BMCs) at local community level. The BMC and the NBA is required to consult BMC in decisions relating to the use of biological resources/ related knowledge within their jurisdiction. The legislation also provides for promotion of conservation, sustainable use and documentation of biodiversity. Prior approval of NBA would be required for applying for any form of IPR within or outside India for an invention based on research or information on biological resource obtained from India[33].

The Indian legislation for the Protection of Plant Varieties and Farmer’s Right Act, 2001[34] also acknowledges that the conservation, exploration, collection, characterization, evaluation of plant genetic resources for food and agriculture are essential to meet the goals of nation food and nutritional security as also for sustainable development of agriculture for the present and future generations.

Biopiracy: the Indian Experience

In 2000, CSIR found that almost 80 per cent of the 4,896 references to individual plant based medicinal patents in the United States Patents Office that year related to just seven medicinal plants of Indian origin. Three years later, there were almost 15,000 patents on such medicines spread over the United States, UK, and other registers of patent offices. In 2005 this number had grown to 35,000, which clearly demonstrates the interest of developed world in the knowledge of the developing countries. Conveniently, none of the patent examiners are from developing countries, allowing a virtual free pass to stealing indigenous knowledge from the Old World[35].

 Cases of Biopiracy in India

  • Turmeric: The rhizomes of turmeric are used as a spice for flavoring Indian cooking. It also has properties that make it an effective ingredient in medicines, cosmetics and dyes. As a medicine, it has been traditionally used for centuries to heal wounds and rashes. 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 (no.5, 401,504) on use of turmeric in wound healing. The Council of Scientific & Industrial Research (CSIR), India, New Delhi filed a re-examination case with the US PTO challenging the patent on the grounds of existing of prior art.

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 Office revoked this patent in 1997, after ascertaining that there was no novelty; the findings by innovators having been known in India for centuries[36].

  • Neem: Neem extracts can be used against hundreds of pests and fungal diseases that attack food crops; the oil extracted from its seeds can be used to cure cold and flu; and mixed in soap, it provides relief from malaria, skin diseases and even meningitis. In 1994, European Patent Office (EPO) granted a patent (EPO patent No.436257) to the US Corporation W.R. Grace Company and US Department of Agriculture for a method for controlling fungi on plants by the aid of hydrophobic extracted Neem oil. In 1995, a group of international NGOs and representatives of Indian farmers filed legal opposition against the patent.

They submitted evidence that the fungicidal effect of extracts of Neem seeds had been known and used for centuries in Indian agriculture to protect crops, and therefore, were unpatentable. In 1999, the EPO determined that according to the evidence all features of the present claim were disclosed to the public prior to the patent application and the patent was not considered to involve an inventive step. The patent granted on was Neem was revoked by the EPO in May 2000[37].

  • Basmati Rice: Rice Tec. Inc. had applied for registration of a mark “Texmati” before the UK Trade Mark Registry. Agricultural and Processed Food Exports Development Authority (APEDA) successfully opposed it. One of the documents relied upon by Rice Tec as evidence in support of the registration of the said mark was the US Patent 5,663,484 granted by US Patent Office to Rice Tec on September 2, 1997. This US utility patent was unique in a way to claim a rice plant having characteristics similar to the traditional Indian Basmati Rice. It was challenged and later revoked by USPTO[38].

The Traditional Knowledge Digital Library (TKDL) establishment-

Since, 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. 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.

Such concerns have pushed TK to the forefront of the international agenda, triggering lively debate about ways to preserve, protect, further develop and sustainably use TK. Various steps have been taken by the Government of India through concerned departments. In 2001, the Traditional Knowledge Digital Library (TKDL)[39] was set up as repository of 1200 formulations of various systems of Indian medicine, such as Ayurveda, Unani and Siddha and 1500 Yoga postures (asanas)[40], translated into 5 languages-— English, German, French, Spanish and Japanese.[41] India has also signed agreements with the European Patent Office (EPO), United Kingdom Intellectual Property Office (UKIPO) and the United States Patent and Trademark Office (USPTO) to prevent the grant of invalid patents by giving patent examiners at different International Patent offices access to the TKDL database for patent search and examination. [42]

Initiation of the process

The TKDL system of India is a collaborative project between the Council of Scientific and Industrial Research (CSIR), and the Department of AYUSH[43], is a home-grown effort to ensure patent offices around the world do not grant patents for applications founded on India’s wealth of age-old TK. The idea to establish a TKDL came to the fore amid India’s efforts to revoke the patent granted by the United States Patent and Trademark Office (USPTO) on the wound healing properties of turmeric, and the patent granted by the European Patent Office (EPO) on the antifungal properties of neem. These endeavors, while successful, proved extremely costly and time-consuming. Around the time the TKDL was established in 2001, the TKDL expert group estimated that, annually, some 2,000 patents relating to Indian medicinal systems were being erroneously granted by patent offices around the world[44].

For a patent to be granted, an applicant must satisfy certain criteria as defined by national patent law, in particular, an applicant must prove that a claimed invention is novel and not previously known. Why then had patents been granted for so many applications relating to Indian medicinal systems? When patent examiners assessed these applications for patentability, the claimed inventions did not feature in the prior art searches carried out. They were, therefore, deemed patentable. At that time, however, much of India’s traditional medicinal knowledge only existed in Sanskrit, Hindi, Arabic, Urdu and Tamil. These languages were neither accessible to nor understood by patent examiners working in the major patent offices to which the applications had been submitted. The fact that so many patents had been wrongfully granted in the U.S. and Europe caused a great deal of national distress. The people of India felt that knowledge belonging to India was wrongfully being taken away from them. On top of this, these “wrong” patents conferred exclusive rights to exploit the technology in the country in which patent protection was granted. This posed a very real economic threat to Indian producers and to their freedom to operate in foreign markets.

The TKDL has overcome language barriers and is bridging the gaps in TK information in major patent offices. Using information technology tools and a novel Traditional Knowledge Resource Classification System (TKRC)[45], the TKDL has converted and structured ancient texts into 34 million A4-sized pages along the lines of a patent application. These have been translated into English, French, German, Japanese and Spanish. Today, thanks to its TKDL, India is capable of protecting some 0.226 million medicinal formulations and at zero direct cost. Access to the database helps patent examiners root out those applications that clearly do not satisfy the novelty requirement at an early stage. Without a TKDL database, the process of revoking a patent can be a costly and time-consuming affair. It takes, on average, five to seven years and costs between 0.2-0.6 million US dollars to oppose a patent granted by a patent office. Multiply this by India’s 0.226 million medicinal formulations and it is clear that the cost of protection, without a TKDL, would be prohibitive[46].

Classification system

India’s innovative TKRC is modeled on WIPO’s International Patent Classification (IPC)[47]. It consists of some 27,000 subgroups for Ayurveda, Unani, Siddha and Yoga and, like the IPC, is indispensable for the retrieval of relevant information.The TKRC has prompted the reform of the IPC – an essential tool in enabling effective search and examination of patent applications – as it relates to TK. The IPC divides technology into eight sections with approximately 70,000 subdivisions each of which is assigned a symbol consisting of Arabic numerals and letters of the Latin alphabet. Until 2005, only one subgroup – A61K35/78 – existed for medicinal plants, meaning that patent examiners were ill equipped to examine traditional medicine-based patent applications.

 India took up the lack of recognition for traditional medicines in the IPC’s Committee of Experts. Following the establishment of a five-nation ‘Traditional Knowledge Classification Task Force’ – comprising China, the European Union, India, Japan and the United States – the number of IPC subgroups relating to medicinal plants rose to 207 bringing about a fundamental and far-reaching reform of the international patent system. In 2004, it was agreed to link the TKRC’s 27,000 subgroups to the IPC.

Connecting TK holders and patent examiners

The TKDL is a unique, proprietary database that integrates diverse knowledge systems and languages. It is based on 148 books of prior art relating to Indian systems of medicine, available at a cost of around US$1,000. The TKDL connects patent examiners around the world with these books of knowledge.

The TKDL is available to all patent offices that have signed a TKDL Access Agreement which has built-in, non-disclosure mechanisms to safeguard India’s interests and counter any possible misuse. Under such an agreement, patent examiners may use the TKDL for search and examination purposes only and its contents may only be revealed to third parties for the purposes of citation.

So far, India has signed TKDL Access Agreements with the EPO and the patent offices of Australia, Canada, Germany, the United Kingdom and the United States. Negotiations are also ongoing with the patent offices of New Zealand and Japan where agreement in principle has already been reached.

Global IP-watch systems

The national patent laws of most countries allow for third parties – any member of the public – to file a submission questioning the novelty and non-obviousness of a patent application before a patent is granted. There is a need, therefore, to ensure that patent applications that wrongly claim rights in prior art are readily identifiable so that such “third party observations (TPOs)” can be filed and made easily searchable. Global IP-watch monitoring systems have an important role to play in enabling the identification of published TK-related applications on which third parties – in accordance with the patent law of the country concerned – may file observations.

To date, the submission of TPOs has proven the only cost-effective way of preventing misappropriation of TK at the pre-grant stage. The TKDL database has enabled the submission of TPOs that have resulted in the successful opposition of hundreds of patent applications filed around the world. Without documenting and digitizing TK and making these databases easily accessible to patent examiners operating in the major languages of commerce, this would not have been possible.

The TKDL has an integrated global biopiracy watch system that allows monitoring of patent applications related to Indian medicinal systems. It enables effective detection of attempts to misappropriate this knowledge by third parties filing applications with patent offices around the world. It means that immediate corrective action can be taken, and at zero direct cost, to prevent biopiracy. India is the only country to date to have put such a system in place.

In 2012, for the first time TKDL database was used to revoke a patent. Government of India revoked the patent granted to Avesthagen by Indian Patent Office (IPO) in April, 2012 on the grounds of being mischievous and prejudicial to the public. This patent was granted for “synergistic ayurvedic/ functional food bioactive composition”. Patent application for the same was 1076/ CHE/ 2007. The patent was for the composition consisting of jamun, lavangpatti and chundun and this composition was to be used for treatment of diabetes. India’s TKDL database is so far a success story as India is the only country in the world to have set up an institutional mechanism – the TKDL – to protect its TK. The TKDL enables prompt and almost cost-free cancellation or withdrawal of patent applications relating to India’s TK[48]. To date the TKDL has enabled the cancellation or withdrawal of a large number of patent applications attempting to claim rights over the use of various medicinal plants. India’s TKDL is a unique tool that plays a critical role in protecting the country’s traditional knowledge.

Steps taken by Kerala Govt. – Intellectual Property Rights (IPRs) Policy for Kerala released in 2008,[49] proposes adoption of the concepts ‘knowledge commons’ and ‘commons licence’ for the protection of traditional knowledge. The chief architects of the Policy are Prof. Prabhat Patnaik and Mr. R.S. Praveen Raj. The policy seeks to put all traditional knowledge into the realm of “knowledge commons”, distinguishing this from the public domain. While codification of TK in digital libraries and sharing the same with patent office prevents direct misappropriation, it is feared that it may provide an opportunity for private appropriation by making cosmetic improvements to such traditional knowledge that is not readily accessible otherwise. TKDL cannot at the same time be kept confidential and treated as prior art – says R.S. Praveen Raj.[50]

Judicial Pronouncements

  1. Mitra Company Pvt. Ltd. vs. Span Diagnostics– CS (OS) No. 2020/2006 – Judgment dated 22.02.2008.- Issue related to Hepatitis C diagnostic kit.  Judgment delivered by Hon‘ble Mr. Justice Sanjay Kishan Kaul of the Delhi High Court. Sufficient documents were filed showing the research conducted by J. Mitra Co.Whereas, the defendant showed no research or development towards its infringing product. The Court held that the relevance of PCT Report is not binding while evaluating Obviousness & Inventive step. The Patent is not hit by prior art, no credible challenge to the validity of the patent. Thus, injunction granted. In Division Bench, for disposal of existing stocks – The Court directed deposit of 30% of proceeds.
  2. Bayer vs. Union of India WP(C) No.7833/2008 Patent Linkage Case- Court held, no Linkage between marketing approval and patent infringement, Writ dismissed with costs. Division Bench held that it is a matter of governmental policy.
  3. Hoffmann-L.A. Roche Ltd. and Anr. vs. Cipla Ltd. 148 (2008) DLT 598- ERLOTINIB HYDROCHLORIDE-Justice Ravindra Bhat of Delhi High Court held that ―Credible Challenge‖ is raised ,Price difference is important to decide balance of convenience ,No injunction – accounts be filed ,Division Bench found concealment by Roche.
  4. Span Diagnostics Vs. J.Mitra Co. Pvt. Ltd 2008(37) PTC 56 – Justice Nandrajog- issue was whether appeal was maintainable in view against pre-grant opposition 18 month vacuum, IPAB was yet to be notified ,Appeal held maintainable – transferred to IPAB.
  5. Mitra Vs. Controller of Patents 2008 Supreme Court held:- No appeal lies against pre-grant order ,only in view of unusual circumstances appeal to be entertained , to be heard by High Court – Procedural ironing out by Courts ,Justice Murlidhar Held Pre-Grant ,Opposition Rejected – no appeal or writ – go for Post-Grant ,Patent rejected – appeal to IPAB
  6. Snehlata C. Gupte vs. Union of India (15th July’2010)- SERIAL OPPOSITIONS. Pre-Grant by Party A Decision in opposition on X date – Controller orders for grant Second opposition filed next day, Grant and sealing yet to take place ,Pre-grant can be filed anytime before grant ,Court held Serial Oppositions Impermissible.

Laws regarding traditional knowledge in other nations:

  • South Africa– in 2013 an alternative South African bill[51] on the protection of traditional knowledge has been published in the official Government Gazette, and it would create a new system of intellectual property right specific to TK. This Bill will establish a modified TK system, customized to the unique and widely divergent demographic of the South African population and capable of actually protectingTK and financially benefitting the indigenous communities from whence it hails,” “in addition, this Bill proposes a sui generis approach to protection of sui generis expressions of intellectual endeavor.”
  • The European Union– The most significant treaty for granting European patents at the regional and continental level is the European Patent Conventionof 1973.[52] In contrast to American patent law, the EPC does not allow the patenting of plant varieties. Article 53 (b) of the EPC states that patents shall not be granted: For plants or animals varieties or essentially biological processes for the production of plants or animals; this provision does not apply to microbiological processes or the products thereof. Also, according to Article 52(1) of the European Patent Convention, “patents should be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.”[53]
  • The United States of America– Under Section 102 of the US Patent Act, prior knowledge, usage, and/or invention in the United States can be used as evidence to invalidate an American patent for lacking novelty.[54] Novelty, in turn, is measured against the state of the art. It is generally met unless the invention is patented or described in a publication in the United States or a foreign country.[55] Further, patent examiners compare the invention with “prior art.” If the purported invention is identical to any references establishing prior art, it lacks novelty and no patent will be granted.[56] In European patent law, the novelty requirement is treated a bit differently. Under Article 54(2) of the EPC: ‘The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use in any other way, before the date of filing of the European patent application’. So under European patent law it is not important whether or not the general public is aware of the existence of information stating prior art, but rather that the information is available and accessible to anyone at any given time before an application is filed.

The major criticism of American patent law is its state-centric nature. The United States operates under a system of geographically specific notions of printed publications to determine prior art. Scholars argue that American patent law thus “waters down the novelty requirement by patenting inventions known or used in foreign countries as long as they have not been patented in a printed publication.”[57]  Developing countries which do not have strong systems of patent protection could therefore suffer, and traditional knowledge could be exploited in the United States. Indeed, the cultural and economic damage that this regime could cause to indigenous people is mammoth.

Conclusion

The call for protection of TK against misuse or misappropriation raises deep policy questions and practical challenges alike. The changing social environment, and the sense of historical dislocation, that currently affect many communities may actually strengthen resolve to safeguard TK for the benefit of future generations. Just as the technological value of TK is increasingly recognized and its potential realized, the challenge is to ensure that the intellectual and cultural contribution of traditional communities is appropriately recognized. This means taking greater account of the needs and expectations of TK holding communities concerning the intellectual property system. Its traditional qualities and frequent close linkage with the natural environment mean that TK can form the basis of a sustainable and appropriate tool for locally-based development. It also provides a potential avenue for developing countries, particularly least-developed countries, to benefit from the knowledge economy.

Indeed, the WIPO work is framing the core principles that should underpin the protection of TK. This offers a potential foundation for international legal development in the form of precise policy and legislative options for enhanced protection of TK through adapted or expanded conventional IP systems, or through stand-alone sui generis systems. This may in turn facilitate further development of an international consensus on the more detailed aspects of protection, as the lessons of practical experience in achieving these principles are better understood and shared. This should lead to strengthened linkages between the needs and interests of traditional communities, and the core public policy principles of the IP system[58].

If, the criteria for patentability are properly applied; the granting of erroneous patents would be avoided. Under the patent law of many member, prior art comprises not only earlier disclosures in writing but also  what is early publicly know or used anywhere in the world. In response it has been said that, even if the national laws applicable do not allow patents on invention based on traditional knowledge, patents in other regimes that allow such patents reduce the economic value of the knowledge of local community and may constrain the development and use of their knowledge in the marketplace or may facilitate otherwise of exploitation of their knowledge without any rewards to them. It has been suggest that the development of database on traditional knowledge would help patent examiners discover relevant prior art so as to improve examination of patent application and prevent the grant of patents for subject matter that should not be patentable. Database would also help potential licensees in terms of searching for knowledge, innovations and parties‘

Various suggestions have been advanced in India to extend protection to knowledge, innovations and practices.

These include:

(i) Documentation of TK;

(ii) Registration and innovation patent system; and

(iii) Development of a sui generis system.

It is sometimes believed that proper documentation of associated TK could help in checking bio-piracy. Documentation could be a double-edged sword. It is assumed that if the material/ knowledge are documented, it can be made available to patent examiners the world over so that prior art in the case of inventions based on such materials/knowledge are/is readily available to them. It is also hoped that such documentation would facilitate tracing of indigenous communities with whom benefits of commercialization of such materials/knowledge has to be shared.

Reference can be made to the development of Jeevani which is a good example of equitable benefit sharing between resource holders. As noted in the WIPO report-

In South India the medicinal knowledge of the Kani tribes led to the development of a sports drug named Jeevani, an anti-stress and anti-fatigue agent, based on the herbal medicinal plant arogyapaacha. Indian scientists at the Tropical Botanic Garden and Research Institute (TBGRI) used the tribal know-how to develop the drug. The knowledge was divulged by three tribal members, while the customary rights to the practice and transfer of certain traditional medicinal knowledge within the Kani tribes are held by tribal healers, known as Plathis. The scientists isolated 12 active compounds from arogyapaacha, developed the drug Jeevani, and filed two patent applications on the drug. The technology was then licensed to the Arya Vaidya Pharmacy, Ltd., an Indian pharmaceutical manufacturer pursuing the commercialization of Ayurvedic herbal formulations. A trust fund was established to share the benefits arising from the commercialization of the TK-based drug[59].

 Some specific suggestions:

  1. Access to these databases for patent authorities and relent judicial authorities could be facilitated through the establishment of an international gateway for traditional knowledge, which would electronically link this data based.
  2. At least minimum harmonization of the structure and content for these data based should be achieve
  3. Data based should be reachable over the Internet.
  4. To the extent that traditional knowledge which already recorded in database and print media, it is important to insure that patent examiners are made familiar with this resources.
  5. Database should only disclose traditional knowledge already in the public domain or traditional knowledge for which prior inform consent has been obtained.
  6. Access these data based should not involve costly or burdensome procedures.

While serving as repository of information, database cannot be completely exhaustive as they may not contain knowledge held by local communities in oral form or knowledge that is continuously evolving through informal innovation within a community. While database may help forestall the grant of inappropriate patents, they cannot address the problem of the non-accrual to the holders of traditional knowledge of economic benefits resulting from the use of knowledge.Reference to database by patent examiner would be voluntary and patent examiners in member countries would have no obligation to consider this information in their prior art searches. Obligations, guidelines or recommendations should be established to improve and substantial tighten up search systems in respect of information that is relevant to traditional knowledge so as to evaluate novelty and inventiveness.

Documentation of traditional knowledge is also acknowledge as a means of giving due recognition to the traditional knowledge holders. This particular aspect of documenting formulations in the Ayurvedic system of medicine in India in the shape of traditional knowledge Digital Library (TKDL) is already on and we appreciate the efforts of WIPO to arrange for a presentation in this regard as also on the topic of Health Heritage Data Base for the benefit of the members attending the last Intergovernmental Committee meeting in Geneva in June 2002. The scope of the TKDL work relates to the transcription of 35,000 formulations used in Ayurvedic system of medicines. These details are being converted into Patent

Application Format and will include description, method of preparation, claim and the usage of the bibliography. Documentation of TK is one means of giving recognition to knowledge holders. But mere documentation may not enable sharing of benefits arising out of the use of such knowledge, unless it is backed by some kind of mechanisms for protecting the knowledge. This necessitates the need for extending some kind of protection to TK. Documentation of TK may only serve a defensive purpose, namely that of preventing the patenting of this knowledge in the form in which it exists. Documentation per se, however, will not facilitate benefit sharing with the holders of TK.

Once the traditional knowledge is recorded in TKDL, legally, it becomes public domain knowledge. Under the patent law, this means that it is considered to be prior art and hence is not patentable. Such a written record, in a form easily accessible to patent offices around the world, would provide all such offices with a record of India’s prior art. Patent examiners could easily check this database and reject any patent application that might be a mere copy of traditional knowledge. Thus it helps in preventing cases of biopiracy. TKDL has a rich database of information and proved to be extremely useful to research and industry, both in India and abroad, providing an impetus to invention, and the development of products such as medicines, which would be of immense value to all of mankind. TKDL serves the purpose of integrating the various documents related to traditional knowledge in a common language and in an easy retrieval form. It is of enormous benefit in developing the traditional knowledge further[60].

REFERENCES

http://www.nativescience.org/html/traditional_knowledge.html

http://www.wipo.int/pressroom/en/briefs/tk_ip.html

http://www.wipo.int/export/sites/www/freepublications/en/tk/920/wipo_pub_920.pdf

http://www.ip-watch.org/2010/09/27/the-realities-of-traditional-knowledge-and-patents/

Kristen A. Carpenter, Sonia K. Katyal & Angela R. Riley, In Defense of Property, 118 Yale L.J. 1022 (2009)

Brad Sherman & Lionel Bently, The Making of Modern Intellectual Property Law: The British Eexperience, 1760–1911 (1999); See also; Peter Drahos, A Philosophy of Intellectual Property (1996).

Harjo v. Pro-Football, Inc., 30 U.S.P.Q.2d (BNA) 1828 (TTAB 1994) and Pro-Football, Inc. v. Harjo, 565 F.3d 880 (D.C. Cir 2009). Also, the use of names and images in other contexts. See Joseph William Singer, Publicity Rights and the Conflicts of Laws: Tribal Court Jurisdiction in the Crazy Horse Case, 41 S.D. L. Rev. 1 (1996). Also see Naomi Mezey, The Paradoxes of Cultural Property, 107 Colum. L. Rev. 2004 (2007).

Convention on the Grant of the European Patents 1973

 

 

[1]http://www.nativescience.org/html/traditional_knowledge.html

[2] http://www.wipo.int/pressroom/en/briefs/tk_ip.html

[3] http://www.wipo.int/export/sites/www/freepublications/en/tk/920/wipo_pub_920.pdf

[4] http://www.ip-watch.org/2010/09/27/the-realities-of-traditional-knowledge-and-patents/

[5] Girach, R. D. (2007) – ‘Methods of Documenting Indigenous Knowledge’. The Tradition. Vol. 04. 24- 30.

[6]Satapathy, C., S. Veeraswami and B. Satapathy (2002) – Indigenous Technical Knowledge; method of  documentation and Rationalization, Souvenir on International Seminar Traditional Knowledge, Health and Environment, OUAT. 23-24 February, 2002. 12-15.

[7] http://orissa.gov.in/e-magazine/Orissareview/2011/Jan/engpdf/66-71.pdf

[8] http://web.law.duke.edu/cspd/itkpaper3

[9] Gupta, V. K. (2008) – Protection of Traditional Knowledge. Dhishana 2008. National Conference on Streamlining India’s Traditional Knowledge Towards formulating a sui generis Regime. May 23-25, 2008. Thiruvananthapuram. 49-61.

[10] Supra 3

[11] See history of emergence in Jane E. Anderson, Law, Knowledge, Culture: The Production of Indigenous Knowledge in Intellectual Property Law (2009)

[12] See Brian Noble, Justice, Transaction, Translation: Blackfoot Tipi Transfers and WIPO’s Search for the Facts of Traditional Knowledge and Exchange, 109 Am. Anthropologist 338 (2007). The authoritative power of WIPO is also examined as a form of regulatory governance. See Christopher May, The World Intellectual Property Organization: Resurgence and the Development Agenda (2007).

[13] http://www.wipo.int/meetings/en/topic.jsp?group_id=110

[14] Kristen A. Carpenter, Sonia K. Katyal & Angela R. Riley, In Defense of Property, 118 Yale L.J. 1022 (2009)

[15] Brad Sherman & Lionel Bently, The Making of Modern Intellectual Property Law: The British Eexperience, 1760–1911 (1999); See also; Peter Drahos, A Philosophy of Intellectual Property (1996).

[16] Harjo v. Pro-Football, Inc., 30 U.S.P.Q.2d (BNA) 1828 (TTAB 1994) and Pro-Football, Inc. v. Harjo, 565 F.3d 880 (D.C. Cir 2009). Also, the use of names and images in other contexts. See Joseph William Singer, Publicity Rights and the Conflicts of Laws: Tribal Court Jurisdiction in the Crazy Horse Case, 41 S.D. L. Rev. 1 (1996). Also see Naomi Mezey, The Paradoxes of Cultural Property, 107 Colum. L. Rev. 2004 (2007).

[17] Brokensha, D. (1990). Indigenous knowledge system and development. Lanham, MD: University Press of America.

[18] Warren et al (1993). Using indigenous knowledge in agricultural development: World Bank Washington DC. World Bank.

[19] http://highcourtchd.gov.in/right_menu/events/events/apjaspeech.pdf

[20] http://orissa.gov.in/e-magazine/Orissareview/2010/May-June/engpdf/99-103.pdf

[21] Leanne M. Fecteau, The Ayahuasca Patent Revocation: Raising questions about current US Patent Policy, 2001 by Boston College Third World Law Journal

[22]Gupta V. K. “Traditional knowledge Digital Library”, Sub-Regional experts Meeting in Asia on Intangible cultural heritage, Bangkok, Thailand, 13-16 December 2005. (Conference Proceedings) http://www.accu.or.jp/ich/en/pdf/c2005sub_reg_Ind/pdf (Viewed on 11 December 2009)

[23] http://www.indiastat.com/article/25/indira/fulltext.pdf

[24] http://www.iprcommission.org/papers/pdfs/final_report/ch4final.pdf

[25] http://www.wipo.int/pressroom/en/briefs/tk_ip.html

[26] Inventory of existing online databases containing traditional knowledge documentation data (WIPO

Document No. WIPO/GRtraditional knowledge F/IC/3/6

Source: http://www.wipo.org/eng/meetings/2002/igc/doc/grtkfic3_6.doc

[27] Supra 24

[28] http://orissa.gov.in/e-magazine/Orissareview/2010/May-June/engpdf/99-103.pdf

[29] http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

[30] Simeone Tonina, “Indigenous traditional knowledge and IPRs.http://www.parl.gc.ca/information/library/PRBpubs

[31] http://nbaindia.org/content/16/14/2/introduction.html

[32] The National Biodiversity Authority (NBA) was established in 2003 to implement India’s Biological Diversity Act (2002). The NBA is Autonomous body and that performs facilitative, regulatory and advisory function for Government of India on issue of Conservation, sustainable use of biological resource and fair equitable sharing of benefits of use. See, http://nbaindia.org/link/304/1/2/home.html

[33] http://www.law.ed.ac.uk/ahrc/files/67_varkeytraditionalknowledgeinindia03.pdf

[34] http://agricoop.nic.in/PPV&FR%20Act,%202001.pdf

[35] Martin van Ameijde, “Biopiracy: The need for a protective solution?” http://www.jur.lu.se/Internet/Utbildning/kurser/JCA803.nsf/43e828219552/

[36] http://iosrjournals.org/iosr-jhss/papers/Vol3-issue1/F0313542.pdf

[37] Menon Ramesh. “Traditional Knowledge receives a boost from the government”, India Together, http://www.indiatogether.org/

[38] Subbiah Sumati. “Reaping what they sow. The Basmati rice controversy and strategies for protecting TK

http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bciclr/27/12FMS.htm

[39] http://www.tkdl.res.in

[40] Yoga piracy: India shows who’s the guru http://timesofindia.indiatimes.com/Yoga-piracy-India-shows-whosthe-guru/articleshow/4167939.cms

[41]Know Instances of Patenting on the UES of Medicinal Plants in India“. PIB, Ministry of Environment and Forests. May 6, 2010.

[42]India Partners with US and UK to Protect Its Traditional Knowledge and Prevent Bio-Piracy“. Press Information Bureau, Ministry of Health and Family Welfare. April 28, 2010. Retrieved 25 May 2010.

[43] In 2003, the Department of Indian Systems of Medicine and Homeopathy (ISM&H), created in March 1995, was renamed the Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH)

[44] http://www.wipo.int/wipo_magazine/en/2011/03/article_0002.html

[45] http://www.tkdl.res.in/tkdl/langdefault/common/TKRC.asp

[46] http://www.indiastat.com/article/25/indira/fulltext.pdf

[47] http://www.wipo.int/classifications/ipc/en/

[48] http://www.iipta.com/ipr/blog/avesthagen-patent-revoked-1005. See also, http://spicyipindia.blogspot.in/2012/11/dipp-notifies-revocation-of-avesthagen.html

[49] “IPRs policy proposes ‘knowledge commons'”. The Hindu (Chennai, India). 28 June 2008.

[50] http://www.businessline.in/cgi-bin/print.pl?file=2010012551041500.htm&date=2010/01/25/&prd=bl

[51] http://blogs.sun.ac.za/iplaw/files/2013/04/36354_9-4_ParliamentSA.pdf. See also, http://www.ip-watch.org/2013/04/10/new-traditional-knowledge-bill-published-in-south-africa/

[52] Convention on the Grant of the European Patents 1973.

[53] A 52(1) EPC., 1973

[54] Para 102, 35 USC 1994.

[55] Para 102(a), 35 USC 1994.

[56] Schecter and Thomas Principles of Patent Law 74; von Hahn Traditionelles Wissen 164.

[57] DeGeer 2003 New Eng J Int’l & Comp L 364.

[58] http://www.wipo.int/export/sites/www/freepublications/en/tk/920/wipo_pub_920.pdf

[59] Supra 3. See also, http://www.iimahd.ernet.in/publications/data/2002-08-02AnilKGupta.pdf

[60] http://eprints.rclis.org/14020/1/TKDL_paper.pdf

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