TRADITIONAL KNOWLEDGE AND PATENT ISSUES WITH RESPECT TO BASMATI, NEEM, TURMERIC AND GOLDEN RICE BY - SHUBHAM YADAV & SURYANSH TIWARI
TRADITIONAL KNOWLEDGE AND PATENT ISSUES WITH RESPECT TO BASMATI,
NEEM, TURMERIC AND GOLDEN RICE
AUTHORED BY - SHUBHAM YADAV & SURYANSH
TIWARI
Students at Allahabad
University [B.A.LL.B. (Hons.)]
1.
Introduction
Intellectual property
represents the idea that its object is a matter of mind and intellect. Knowledge or intellect is one of basic requirement to get anything
protected under Intellectual Property Right.
Knowledge is the mentor of man. For the society
it is a torch bearer on its way to posterity. The sum total of knowledge
in a society is guided and supported
by consists of three elements- traditional, modern and a combination of the two. If the knowledge is modern then it can be protected under Intellectual Property
Rights. But if this knowledge is traditional, then it should be allowed
to remain where it is i.e.
in that public domain to which it belongs.
But there may be a
situation in which a ‘traditional’ knowledge which is in public domain in one part of the world may be novel in
other parts of the world. Sometime this traditional knowledge in one place is converted into a modern knowledge at other place and get protected under Intellectual Property Rights. This
is more than a possibility that the modern man may take some elements from traditional knowledge and mold it into a
new idea or invention. This is kind
of fraud committed upon the people who hold the traditional knowledge related
to the use of thing which is now
protected in form of modern knowledge. This is situation where the traditional knowledge needs to be protected.
2. Concept of Traditional Knowledge
Traditional Knowledge
is the knowledge which is maintained and passed from generation to generation forming part of its cultural
or spiritual identity
and is possessed by local communities who gained experience upon that particular knowledge through years
of common practice. Traditional knowledge is traditional because
it is created, preserved and disseminated in the cultural
traditions of indigenous communities. It is considered as a part of the identity of indigenous
communities and inseparable from their ways of life and cultural values,
spiritual beliefs and customs.
Traditional knowledge is knowledge which is traditional only to the extent that its creation and use are part of the cultural
traditions of a community. ‘Traditional’, therefore does not necessarily mean that knowledge
is ancient or static. It is representative of the cultural values of people. In
General terms it is the knowledge possessed by indigenous communities and which related to their
surrounding natural environment and
continuous practice of which makes it custom.
World
Intellectual Property Organization (WIPO) defines Traditional Knowledge as - Traditional
knowledge is knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within
a community, often forming part of its cultural or spiritual identity.
It further provides that –
•
Traditional
Knowledge in a general sense embraces the content of
knowledge itself as well as traditional
cultural expressions, including distinctive signs and symbols associated with TK.
•
Traditional Knowledge in the narrow sense refers to knowledge as such,
in particular the knowledge resulting from intellectual
activity in a traditional context, and includes know-how, practices, skills, and innovations.
Traditional cultural
expressions (TCEs), also called "expressions of folklore" and
includes music, dance, art, designs,
names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic
or cultural expressions.
It is very difficult to give a precise definition of traditional knowledge. Its subject matters may be listed inclusively or
illustratively rather
exhaustive. It may include folk songs, stories,
epics, legends, folktales, poetry, riddles, dance forms, plays, rituals
and other ceremonies and performances,
drawings, designs, paintings, carvings, sculptures, pottery, mosaics, jewelry, carpets, and textiles. It may also cover
medicines, health care, agriculture, bio-diversity, etc. Thus, it is clear that traditional knowledge is not confined to any particular field.
3. What is Patent?
The term "patent" denotes a right granted to a person who invents or discovers a new and useful process, product, article or machine of
manufacture, or composition of matter, or any new and useful improvement of any of those. It is not an affirmative right to practice or use the invention. It is a right to exclude others
from making, using,
importing, or selling
patented invention, during its
term usually for a term of 20 years. It is a property right, which the state
grants to inventors in exchange with
their covenant to share its details with the public. In consideration of the above rights, the person seeking
protection is required to disclose his knowledge of the invention. This disclosure will allow the other
people to use the patented
subject once the patent term gets over. Thus, the main purpose
of granting a patent is to give the patentee the right to use his
invention for the service of the society.
4. Problems with Patenting Traditional Knowledge
There are several
problems which are faced by the person who hold the traditional knowledge at the time whenever they try to protect
their traditional knowledge under a patent system as they fail to fulfill the different criteria for the
patentability. Following are some problems in
patenting the traditional knowledge –
•
Patent is a right given to a person who
has invented a particular subject in order to get the invented subject patented there are at least three
parameters which are with the invented subject
matter must fulfill they are – (i)
Novelty (ii) Non-obviousness and
(iii) Industrial application.
If any of these elements is missing then that subject cannot be granted patent protection. In this regard inventiveness or novelty is treated as “isolated, individualized achievement of an identifiable inventor” as against ‘traditional
knowledge’ which is commonly
“possessed by the local communities in one or more societies.” In other words, it is a very difficult problem that
there is no universal or concurrent and determined
answer to the basic issue like who possesses traditional knowledge. Thus, patent
law does not provide effective
legal framework to protect traditional knowledge because it is general
in nature and its holder cannot be an individual.
•
Secondly there is a procedural problem
in obtaining a patent. The procedure to get a
subject patented requires the applicant to mention the exact time when
the subject matter, sought to be
patented, emerged as invention. In case of traditional knowledge, it is very hard to find out a pinpoint the exact time as to when such knowledge emerged.
Traditional knowledge is not something which is invented at a particular
time but it is a long developing process
and is developed through passage from generation to generation. In this way traditional knowledge
do not satisfy the procedural requirement to get patented.
5.
Biopiracy
According
to Merriam Webster ‘Biopiracy’ means the unethical or unlawful appropriation or commercial exploitation of biological
materials (such as medicinal plant extracts) that are native to a particular country or territory without providing
fair financial compensation to the people or government of that country or territory. Biopiracy is said to be committed
when the intellectual property protections or IP
systems are used to legalize the theft caused to the traditional knowledge about biological resources or biological
products , limited to a native people
of country or to a local community, with the malafide intention to have
wrongful gain by getting
patent protection over that knowledge.
6.
Efforts Made for Protecting the Traditional Knowledge
6.1 In International Legal Regime –
Under international legal regime mainly three such efforts are following
-
(i)
The
World Intellectual Property
Organisation(WIPO)
The WIPO has proved a
better forum for dialogue among various stakeholders be they individuals, institutions, governments,
intergovernmental organisations, indigenous people or others-on issues related to the protection, and exploitation of
intellectual property rights, traditional knowledge and folklore etc; in an effort to evolve suitable mechanism
for protecting the traditional knowledge. In 1982, the WIPO
and the UNESCO adopted a model law on folk- lore etc wherein folklore
has been described
as a form of traditional cultural expressions. In October 2000, the WIPO general assembly
established the Inter Governmental Committee
(IGC) "as an international forum for debate and dialogue concerning
the interplay between intellectual
property (IP), and traditional knowledge (TK), genetic resources, and
traditional cultural expressions.
The IGC is working in collaboration with all the stake-holders to evolve a mechanism to ensure that intellectual property rights are not
given to parties other than the holders of traditional knowledge, folklore etc; it is granted to the custodians of
traditional knowledge and cultural expression;
and such custodians have an equitable benefit sharing in case their knowledge
is commercially exploited.
(ii)
Convention on Biological Diversity
During the United
Nations Conference on Human Environment in Brazilian capital Rio de Janeiro,
the Convention on Biological Diversity (CBD) was signed
in year 1992. CBD obliges
the signatories that, subject to their national legislation, they will 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.
(iii)
WTO
and TRIPS
The Agreement on Trade Related Aspects of Intellectual Property
Rights (TRIPS) is an international legal agreement between all the member nations
of the World Trade Organization. Article 27(b) in the agreement gives members of the WTO the
right to establish a sui generis regime.
This allows countries to shape their protection system which can assist them in protecting their traditional knowledge.
Paragraph 19 of the 2001 Doha Declaration provides that the TRIPS Council should also maintain the relationship
between the TRIPS Agreement and the
UN Convention on Biological Diversity, the protection of traditional knowledge
and folklore.
6.2 Position in India:
India does not have any specific law to protect
tht traditionalknowledge but effort to protect the same
has been made through following legislations –
(i)
Indian Patent Act, 1970
The Patents
Act provides defensive
protection to the traditional knowledge. Section 3(p) of the Indian Patents Act, 1970 provides that
"an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components" is not an invention under the
Act.
(ii)
Traditional Knowledge Digital Library
India has also done an excellent
exercise by preparing
a database called "traditional knowledge digital library" (TKDL), which is helping the patent
offices of various countries to reject the patent application which are based on our traditional knowledge.
(iii)
Protection of Plant Varieties and Farmers’ Rights Act, 2001
It recognises and
protects the rights of the farmers in respect of their contribution made at any time in conserving, improving and making available plant genetic resources
for the development of new plant
varieties.
(iv)
Biodiversity Act, 2002
India being a party
to the United Nations Convention on Biological Diversity 1992, enacted the Biological Diversity Act, 2002 to give
effect to its provisions. The Act provides for the conservation of biological diversity, sustainable utilization and equitable sharing
of the benefits arising out of utilization of genetic resources.
7. Traditional Knowledge and Biopiracy Cases
This assignment is exclusively aimed at following
biopiracy cases–
•
Basmati
Rice Case
•
Neem Case
•
Turmeric Case
•
Golden
Rice Case
7.1
Basmati Rice Case [ India-US Basmati
Rice Dispute , 1997]
Basmati means
‘queen of fragrance
or the perfumed one’. Basmati rice is one of the principle food in almost
the Asian region
especially in India and Pakistan
its flavour and Roma has been developed through selective breeding
for thousands of years various
varieties of rice have been developed by the farmers with different tastes.
In July 1994 a Texas-
based company ‘Rice Tec Inc.’ filed a patent application before United States
Patent and Trademark Office (USPTO) for registration of a mark under the
name of ‘Texmati’. Company
acknowledged that the good quality of Basmati Rice is traditionally grown in India & Pakistan but it
claimed that it had invented some original and novel variety of Basmati Rice and grains
by having spent a huge amount of time and money to devise a way to breed which makes the production of
high quality, higher yielding Basmati Rice possible worldwide.
On September 2, 1997, Rice Tec Inc. was granted
a patent by USPTO on basmati rice lines and grains. This gave them the rights to
call the aromatic rice “Basmati” within United States
, and they could also
export it internationally. Two Indian NGO’s, namely,
Centre for Food Safety, an international NGO that campaigns against biopiracy, and the
Research Foundation for Science, Technology and Ecology, an Indian environmental NGO, objected against
the patent granted
by USPTO and filed petitions in the USA.
They i.e. NGOs
claimed that India has been one of the major exporters of Basmati to several countries and such a grant by the US
patent office was likely to affect its trade. Since Basmati right is traditionally grown in India
and Pakistan it was opined that granting patented to Rice Tec violated the geographical indications Act under the TRIPS
Agreement.
The Indian
government, after putting
together the evidence, officially challenged the patent by filing petition for re-examination of order of granting patent in June 2000 through Agricultural and Processed Food Exports Development Authority.
Issues Raised
Several issues were raised on this Basmati Rice dispute before USPTO, which mainly were concentrated
towards the new emerging patents, biopiracy and geographical indication laws. The major issues raised were as follow -
i.
Whether
the name ‘basmati’
is a ‘generic’ term or specifically originates from the aromatic rice grown in India
and various South-Asian countries?
ii.
Whether
the grain developed by Ricetec Inc. is
a novel variety and strain?
iii.
Is Rice Tec Inc. guilty
of biopiracy and violation of traditional knowledge belonging to indigenous communities of Southern-Asian countries?
Arguments
Regarding issue (i) - Rice Tec argued that the term ‘Basmati’ has become a generic term for a particular
category of rice and hence cannot be protected. A generic name is a word used
by a majority of the revenant
public to name a class or category of product or service. Such word cannot be appropriated as a protectable
mark as they belong to the public at large. But if the word has attended the distinctiveness as mark of a particular
party then such distinctiveness is entitled
to be protected as a mark. India countered
that ‘Basmati’ is not generic it has acquired many special distinctive quality due to
complex combination of factors including inherited genetic character in environmental condition specific to the
soil and climate in foothills of Himalayas.
Regarding issue (ii) – Company
Rice Tec claimed
that it had invented some original and novel variety of Basmati Rice and grains by having spent a huge amount of time and money to devise a way to breed which makes the
production of high quality. The Indian team, consisting of
scientists working
for various research
groups and government agencies provided evidence
for the ground that the plant varieties
and grains already
existed in India and that the rice imported cannot be grown in the U.S. because of
varied climatic conditions. The legal theory states that the patent was not novel at all because the rice has been in
existence for very long time thus it could
not be termed to be an invention. Research also stated that Rice Tec’s only
three claims were prior art out of twenty.
Regarding issue (iii)
– India asserted
in the that the alleged that Rice Tec has committed misappropriation of traditional knowledge about basmati rice
sold in the United States and hence
this act of company falls into category of Biopiracy. Company also acknowledged
that its rice was of same or similar
qualities of traditional Indian basmati
rice but it had been grown in North
America.
HELD
The Indian
team put its attention on the crucial
three of RiceTec's 20 claims (11
relating to the plant, five to the grain, three to breeding methods and one to the seed). India's challenge resulted into favourable effect: RiceTec
withdrew these claims promptly. Meanwhile, with India's action, the process of re-examination of grant of patent began
and the close scrutiny troubled the
RiceTec. When USPTO wrote to the company and asked for its explanations, it
withdrew an additional 11 claims,
leaving it with only five core claims in the patent. These give it exclusive
rights to the three strains.
Raghunath Mashelkar, director, Council for Scientific and Industrial Research, clarifies that these
five claims are similar to a claim
that could be made by any
plant biologist who introduces a new hybrid variety and in no way concerns the
original Basmati rice of the Indian
subcontinent. RiceTec has also been ordered to change the title of its patent from "Basmati Rice Lines
and Grains" to "Rice Lines Bas 867, RT 1121 and RT 1117".
7.2 Neem Patent Case
Fact
Of The Case
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 to the US Corporation WR 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 non-govenrmental organizations (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 was a prior art un-patentable.
That product i.e. a particular medicine is an example of American Discovery.
(i)
It satisfies the requirement of United
States Code (USC) section 101 102
103
i.e. it is novel,
of industrial usefulness and is non obvious.
(ii)
That what they are doing will
help the Indian economy.
(i)
Neem’s
pesticidal properties have been known in India for years. The communities in India had already discovered storage stable mixtures
of pesticides therefore Grace’s patent is obvious.
(ii)
They are actually stealing the indigenous practices , knowledge of Indian people
and causing harm to farmer’s
right to do business.
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 Neem was
revoked by the EPO in May 2000.
7.3
Turmeric Patent Case
The rhizomes of
turmeric are used as a spice for flavouring Indian
cooking. It also has properties that
make it an effective in regional cooking as well as having a central place in Ayurvedic and Chinese medicine to treat
various ailments. Its use within the medicinal field has been found to help against among other things inflammations,
digestive disorders, liver diseases and cancer.
Fact of the Case and India’s
Challenge
In 1995, two 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 on wound healing
by administering turmeric to a patient afflicted
with a wound.
The Council of
Scientific and Industrial Research (CSIR) of India challenged the patent in 1996.CSIR claimed that the patent lacked
novelty as the use of Turmeric as a method for
healing wounds was age old in India and therefore a part of the prior
art. CSIR presented 32 references, some of them over a hundred years old, to support
that the claims
of the patent were well known and part of the prior art. The process was non-novel and
had in fact been traditionally
practiced in India for thousands of years, as was eventually proven by ancient Sanskrit writings that documented
turmeric’s extensive and varied use throughout India’s history.
In 1998 April, the USPTO favoured
the objections made by CSIR which was based
on the argument that was proved with
years old documentary evidence that Turmeric was being in use by Indian
people since ancient
period of time and cancelled the patent.
7.4
Golden Rice Patent Dispute
•
The name golden
rice itself suggests
that there is some sort of uniqueness in the quality
of the rice. This golden
rice is a kind of rice which is grown in some of the test plots in Philippines and there is no such rice ever grown before.
In fact, this rice was genetically engineered by two European
Scientists in the year 2000.
•
They genetically engineered
yellow-colored rice enriched with Vitamin – A,
The Golden Rice has been genetically
modified so that it contains betacarotene, the source of Vitamin – A.
•
This technology is now held by
multinational agro-company Syngenta and United
Nations backed International Rice Research Institute (IRRI) in Manila.
In addition, Novartis, a
multinational, and Kirin Breweries of Japan also have patents on the genes used as
constructs for the vitamin A rice.
•
Actually, the Indian Crop Scientists
have for a long time past seeking “freedom to
operate” and commercialize the Vitamin -A rich rice as the Indian Council
of Agricultural Research
(ICAR) would not be able to breed and release its own this type of yellow-colored rice that could
be a rich source of Vitamin
– A. This also implies the risk
that this Asian staple might just be reduced to an "intellectual
property" meant for commercial exploitation by these corporate
giants.
•
These
giant companies are not going to give up their exclusive ownership
over Golden Rice but they have agreed that they will
be giving royalty free licences to the Indian
farmers. But this arrangement of royalty free license a mere ruse for
establishing monopoly over the rice
production and reducing the Indian farmers to mere serfs. It is very effective strategy
for these corporate
takeovers of this Vitamin – A rich rice.
8. Conclusion
Traditional knowledge
is one of the important assets for our native community. Through the traditional knowledge, the farmers
on any local community conserve
and maintain the biodiversity
and make sustainable agricultural practices. The documentation of traditional knowledge prevents the chances of
bio-piracy whereby the native traditional knowledge is prevented against misuse and misappropriation of our products by
third parties. Such a knowledge must be protected at any cost and effective
steps must be taken to prevent any type of threat or biopiracy. For this purpose,
the authorities must be well aware and trying to update Traditional Knowledge Digital Library.
Now efforts are being made for necessity of stating source of origin in order to get anything patented. In such a
scenario India must concentrate over preservation of traditional knowledge of country.
9. Bibliography
1. ,An Introduction to Intellectual Property
Right by JP Mishra (Central
Law Publication, 3rd Edn.)
2. Law Relating to Intellectual Property Rights by VK Ahuja (Lexis Nexis Publication , 3rd Edition)
3.
Basmati- Pride Of India-
A Case Comment available at:
7.
India: Traditional Knowledge and Patents available at :
9.
Traditional Knowledge and Patent Issues: Concerning Turmeric, Neem and Basmati Rice available
at:
11. A Study
of The Basmati Case available at:
12. Reaping
What They Sow: The Basmati Rice Controversy and Strategies for Protecting Traditional Knowledge available at :
13. Battle over Basmati Rice Renews Debate
on India's Stand on Intellectual Property Rights available
on:
VK Ahuja, Law
Relating to Intellectual Property Rights, 665 (Lexis Nexis Publication, 3rd
Edition)
India: Traditional Knowledge and Patents available at :
VK Ahuja, Law
Relating to Intellectual Property Rights, 669 (Lexis Nexis Publication , 3rd
Edition)
JP Mishra, An Introduction
to Intellectual Property Rights, 413 (Central Law Publication, 3rd Edn.)
