Patent

EPO Gets Access to India’s Traditional Knowledge Digital Library (TKDL)


The ambitious traditional knowledge digital library (TKDL), successfully completed by CSIR (under VK Gupta’s stewardship) is now accessible to the EPO, thanks to an agreement signed recently between the Indian government and the EPO.

Radhika Pandeiya and Jacob Koshy of The Mint broke this story (online) today, including myriad comments on what this means for India in terms of the much bandied about TK misappropriation debates (turmeric patenting etc). And what ought to the future policy direction in relation to this database and its potential access to non governmental entities.

Here are some excerpts from their story titled “Ginger can’t be patented in Europe now

“India’s traditional knowledge—such as medicinal properties of neem and turmeric—could now become more difficult to patent for drug makers in Europe.

The European Patent Office, or EPO, will consult an Indian database that lists traditionally known drug formulations before granting patent rights.

The Council for Scientific and Industrial Research, or CSIR, India’s largest state-managed research agency, will begin sharing the home-grown catalogue with EPO later this month. CSIR and EPO recently signed an access agreement to this effect. This will likely result in at least 40 patent filings in Europe getting rejected, which could have otherwise passed muster.

…The Traditional Knowledge Digital Library, or TKDL, has been created by the National Institute of Science Communication and Information Resources, or Niscair, a CSIR body, and contains a 24-million-page searchable database that translates text from Sanskrit into English, German, French, Spanish and Japanese.

…A CSIR official said that though 2,000 existing patents can now be challenged, there were no plans to initiate litigation. “This is meant as a deterrent…though technically we can initiate litigation saying that these patents are based on well-known formulations, it would be too expensive and long-drawn,” the official said on condition of anonymity.

“This is a very positive step for us in protecting traditional knowledge. It’s a big achievement,” Samir Brahmachari, director general of CSIR, said over the phone. The next step is to take this initiative to the US.

….“India did fight successfully the revocation of patent on wound healing property of turmeric at United States Patent and Trademark Office and (a) patent on anti-fungal properties of neem at European Patent Office,” Niscair director V.K. Gupta, who is also lead coordinator for the project, said in a 2006 report. “However…(a) legal battle on revocation is extremely expensive and time consuming.”

For anything to be granted a patent, the applicant must prove that it is novel and not previously known. “Indian traditional knowledge is prior art, which means it is already known publicly. Hence, once TKDL opens out to EPO, anyone applying for a patent on which we hold traditional knowledge will not be successful,” said Elizabeth Varkey, an advocate at the Kerala high court.

…EPO, however, is unsure of the extent to which TKDL will be applicable. “Many cases affected by aspects of traditional knowledge are occurring in the field of medicinal preparations. We estimate that at the EPO, about 100 patent applications per year are related to such aspects, but not all of them relate to subjects covered by TKDL,” Osterwalder said.

There is an argument that the database be used other ways too. “The government should also think about negotiating access rights (to TKDL) to private parties and other non-governmental entities. Given that the new chemical entities pipeline is drying up, innovators need to focus more on traditional knowledge that offer potentially unique insights for new drugs,” said Shamnad Basheer, professor of intellectual property law at the National University of Juridical Sciences, Kolkata. “Also private parties could then challenge patent applications that misappropriate Indian traditional knowledge.”

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.

2 comments.

  1. AvatarR S PRAVEEN RAJ

    I have a few concerns over sharing TKDL with patent Offices. initiative. Let TKDL be put in public domain if it is “prior art”. It has to be shared with Indian Research Organisations first. We have to encourage TK research in India.

    Please find below “The Hindu – Business Line” News dated 25/01/10 that reports my concerns on TKDL access pact.

    “Traditional knowledge: Concern on access pact”

    The access agreement that India has signed with foreign patent offices to share Traditional Knowledge Digital Library (TKDL) in the form of a ‘prior art’ could undermine its confidentiality.

    ‘Prior art’ is meant to encompass everything that has been published, presented or otherwise disclosed to public on the date of patent and includes documents in foreign languages disclosed in any format in any country.

    “I wonder how confidentiality can be maintained if TKDL is treated as a prior art, says Mr R. S. Praveen Raj, who was formerly an examiner with the India Patent Office and presently scientist with the National Institute for Interdisciplinary Science and Technology (NIIST).

    TKDL contains approximately 2.08 lakh formulations based on Ayurveda, Unani, Siddha and Yoga. These have been transcribed in five international languages viz. English, French, German, Spanish and Japanese, with the objective of preventing its misappropriation at international patent offices.

    Access agreement has been signed with the European Patent Office (EPO) and US Patents and Trademark Office (USPTO) on the premise that the database shall be used for search and examination only and shall not make any third party disclosure except for the purpose of giving a copy to the inventor/applicant as citation. But it is hard for the patent offices to keep the contents of TKDL secret from third parties, since no patent could be denied without disclosing the entire gamut of coded traditional knowledge (TK) associated with the invention to the claimant, says Mr Raj.

    Great opportunity

    It is going to be a great opportunity for fraudsters to file patent applications purely on conceptual grounds (as if they had performed the invention) since they could hope to fetch authentic information on a TK practice/product.

    While codification of TK in digital libraries and sharing the same with patent offices is a viable solution to direct misappropriation, it is feared that it may provide an excuse for capitalists to effect private appropriation by making cosmetic improvements on such traditional knowledge that is not accessible otherwise.

    TKDL may indeed be the right strategy to prevent the direct misappropriation of TK already in public domain and known to a large cross-section of people.

    But it is learnt that the concept of TKDL is being extended to enable codification of community-owned TK also. In this case, it is a clear injustice to those communities if TK of this nature is shared with patent offices, Mr Raj said.

    Docketing System

    Instead, he has floated the idea of a Traditional Knowledge Docketing System (TKDS) that may indicate the location at which a particular TK is available, the community that possesses it, a short description on its nature and the protocol set by the communities/TK holders for accessing the same.

    Communities shall be educated about their entitlements and they shall be empowered to negotiate their due share of monetary benefits in commercialising the TK owned by them. Still, documentation in the public domain may be done in the national interest.

    Reply

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