Copyright Patent

STRETCHING THE WRONG WAY!! METAPHYSICAL MUSINGS ON THE YOGA–PATENT CONTROVERSY


The latest move by the government of India “to lodge its protest against yoga-related patents issued by the US Patents & Trademarks Office” prompted a number of emails to me this morning. Some even went to extent of suggesting: “Surely, if the government is taking this up, there must be some merit in this case”.

If you really want to believe that a naked emperor is adorned with the finest clothes, be my guest!! It’s all a matter of perception anyway, and as our good old sages rightly intuited: the world is nothing but “Maya”– an illusion!!

Metaphysical musings aside, given the fact that governmental interventions in matters of this sort cost time and money (tax payers, of course), I think it’s important to think through these issues carefully and not fall prey to a trigger happy attitude. Shwetasree did an excellent post reflecting on this constant confusion between “patents” and “copyrights” and this tendency to force emotional rhetoric down the throats of unsuspecting members of the public.

In the wake of complaints that SpicyIP only caters to IP aficionados, I’ve tried to present the issues in a simple Q/A format below. A special thanks to my friend, Rohan George, an excellent journalist with “Down to Earth” for highlighting the utility of such a format to me.

1. Has the USPTO granted any patents on yoga asanas?

No. I searched the USPTO database and couldn’t find a single patent that claims any of the yoga asanas. It’s highly amusing therefore to hear a government official state lament:

“It’s ridiculous to even think that an asana which has been practised for several years can be patented just because they think it is different. They have not been looking at the digital library,”

Well, good sir, they’re going to ask you to take a look at the USPTO database before venturing into your digital library!

2. Are there any patents related to yoga at all?

Yes, a search of the USPTO database reveals 166 Yoga related patents. However, most of them relate to yoga related props and accessories (and some of them only mention the term “yoga” in passing). Examples include:

i) Device and Kit for Body Stretching
ii) Yoga Grip Block
iii) Yoga Mat Carrier
iv) Yoga Socks

3. Do these patents matter?

A patent is granted to any invention that is “new”, “inventive” and “useful”. Upon grant, a patent provides the exclusive right make, use and sell the invention in question. Given this fact, do we have objections to any “accessory” related patents that meet the patentability criteria spelt out above?

I guess not, since they don’t lay claims on our “timeless” asanas –rather, they cater to what Ayesha had earlier referred to as “karma capitalism”—a world where yoga has become more of a fashion statement and less of a spiritual endeavour. In other words, Suketu Mehta who was concerned about his father performing Sirsasana in the wake of these “accessory” monopolies need not worry, unless his father insists on standing on his heard whilst at the same time, wearing the Yoga Socks.

4. If there are no patents on yoga asanas but only on the props/accessories, why is there so much of a fuss?

I’m not entirely sure—it probably has to do with the fact that such emotional appeals are fashionable today. Those that have been following this thread will know that this controversy has its roots in our famed “hot” guru Bikram claiming copyrights over his 26 sequence “sauna” room Yoga. I’m also guessing that some part of all this fuss (or tamasha, to use an Indian term) sprang from Suketu Mehta’s famed editorial that made its rounds in almost all the IP related listservs that I know of. I advised Suketu to stick to fiction when I first reacted to his NY Times piece—and now the advise turns to a deep imploration—as he has in many ways caused a considerable waste of my valuable time (and I’m sure of many others who are tired of dealing with this constant play on emotional rhetoric).

5. Where does Bikram Choudhary and the copyrighting of “hot yoga” poses fit into all of this?

If at all Yoga fans and guardians of Indian heritage need to be concerned, it’s with the copyrighting of Yoga sequences by Bikram Choudhury. Of course, this copyright only covers the exact 26 sequence step allegedly distilled out of the ancient scriptures by Bikram, to be performed in a “hot” environment. It does not prevent you from doing the asanas in any other sequence in a not so hot environment. More importantly, such a copyright may be contestable: As I noted in an earlier posting:

“… even under the most liberal IP standards that the US has now come to represent, you could still run a claim that yoga sequences are not copyrightable, since they are predominantly “functional”. And if the US is serious about “precedents” and respecting the classic “idea expression” dichotomy laid down in Baker vs Selden, you’re likely to succeed. The Patry Copyright Blog, by William Patry, Senior Copyright Counsel, Google Inc, elucidates this point quite well and also cites to 2 law review articles on this theme.”

The copyright issue is a complex one and the “real” issue here— however, there are strategic ways of dealing with this, which the government or any interested party ought to explore. But unless we identify the correct issue, we may be barking up the wrong tree (or in the context of Yoga, breathing up the wrong nostril OR stretching the wrong way).

6. Any final pearls of wisdom?

Yoga in many ways is about “breath”—so lets take some deep breaths here, calm our minds and explore these issues in a sensible way.

As the noted Yoga maestro, BKS Iyengar, once remarked “Yoga teaches us to cure what need not be endured and endure what cannot be cured”.

I’m hoping that “ignorance” is something that can be cured. Else, we may have no choice but to endure it.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

8 comments.

  1. AvatarViralfish

    I think the real worry is not about this individual copyright itself, or at least, not only about this. If Bikram Choudhury gets to keep the copyright over his “Hot Yoga”, he’s essentially setting a precedent. It could mean that any combination of yoga asanas could be copyrighted. In a short while, someone will copyright 20 asanas in a forest, another person may copyright 30 asanas underwater, and eventually, someone will obtain protection for a compilation of asanas, Period. By the end of this potential copyright frenzy, it may become nearly impossible for a regular practitioner of yoga to teach a combination of asanas without infringing on someone’s copyright. Of course, this is a worst case scenario, but sometimes thats the only way to gain some clarity on the bigger picture. Consider this the first boot of individual ownership planted on the hitherto virgin intellectual property of yoga technique and theory.

    Reply
  2. AvatarScott Hughes

    I agree with Viralfish. I think a person can’t just copyright a series of ancient poses. That would be like a certain church copyrighting a series of prayers when those prayers have been around for thousands of years.

    BTW, you might like OnlineYogaClub.com.

    Reply
  3. AvatarSneha

    I agree with Shamnad. Us copyright law might be liberal but we Indians dont need to go so crazy over a copyright in the sequence of the yoga asanas…I think everyone who fears a copyright in the yoga sequence should read Baker v. Selden as suggested by Shamnad…it will definitely dispel all our fears of our traditional knowledge becoming the playthings of money hungry westerners…

    Reply
  4. AvatarShamnad Basheer

    Dear All,

    Thanks for your comments. Viralfish and Scott–you are absolutely right that the real worry is not the individual claim by Bikram but the threat of a proliferation of such claims that could drastically impact the common pool of yoga asanas. And this is precisely why the idea expression dichotomy is an important one. If there are only a limited number of ways that you can arrange these sequences (in order to get the maximal advantage out of asanas), then you come very close to claiming rights over something purely “functional” (with limited modes of expression) and this is clearly not copyrightable under Baker vs Selden. But, as you will appreciate, this is a very different issue from claiming asanas via a patent AND the government/press need to draw this distinction in order to pose an effective counter to this monopolization threat.

    Reply
  5. Avatarinformation is wealth

    I found this patent claim in USPTO during casual searching..

    claims of US patent 5,897,865

    1. A method of treating acne comprising, administering orally an effective amount of turmeric to a subject having acne

    I believe ladies in tamilnadu has been using this for centuries.
    so did’nt this make any furore in india?

    Reply
  6. AvatarShamnad Basheer

    Dear Information is Wealth,

    You’re absolutely right. This patent pops us when we enter the search term “yoga”. This is something that shouldnt have been granted–as the patent is anticipated by prior art (grandma’s way of helping you look pretty–something that has been known in India for centuries)…

    Reply

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