Some months after India’s access-sharing with the European Patent Office (EPO) on the Traditional Knowledge Digital Library (TKDL), the impact of which we had reported recently, the United States Patent and Trademark Office (USPTO) too now has been granted access to the database. (Image from here)A brief look around the USPTO TK tools section shows this will not be the first Indian database that the examiners will have access to – if the links are anything to go by, the USPTO has already been using the open databases made available by the Central Council for Research in Ayurveda and Siddha (in five volumes of Ayurvedic Pharmacopia) and – interestingly enough – the Himalaya Healthcare herbs database. Nevertheless, the TKDL should widen the scope of search significantly.
Along with the TKDL access-sharing agreement, there was also a renewal of vows on the IP front, where the two governments have bilaterally agreed to focus on human resource development, capacity building and public awareness programs in intellectual property protection and enforcement.
Francis Gurry on the TKDL
Appropriately enough, as I write this, Mint has posted an interview with Dr Francis Gurry of the World Intellectual Property Organisation, who was on an India-visit recently, which, inter alia, refers to the TKDL and the work that CSIR has done in the field —
Dr Gurry, praising the TKDL, says –
“It is a very important and fine product that is being produced by the Council of Scientific and Industrial Research. It is a product that can make available to patent offices around the world on a confidential basis…detail of traditional knowledge to assist in preventing the granting of patents over that traditional knowledge by unauthorized parties. It is also a basis on which to establish potential collaborative arrangements with private sector or industry to actually use the traditional knowledge in practice. I hope to also collaborate with India to lead a process of establishing similar TKDLs using its approach in other developing countries that wish to use this methodology.”
Tips from WIPO?
Note some key phrases in Dr Gurry’s comments — TKDL can make information available “on a confidential basis”, and is “a basis … [for] potential collaborative arrangements”. There were concerns raised on this blog earlier of the vulnerability of such a database on opening up access – Dr Gurry is inclined to balance between keeping information confidential and strategically leveraging TK in collaboration with perhaps industry or the private sector. Is Dr Gurry hinting at how India and Indian industry to strategise in the times to come?
I would think there are already many players in the traditional pharmacopeia business in India, although there may be room for plenty more – perhaps game changers like Dabur or Himalaya or Hamdard could share a lesson or two in their experience with TK? I say this without knowing anything about their business models or resource bases, but there should be some case studies available at hand to explore the WIPO chief’s proposition further?
International agreement by 2011-12?
On a related note, and in reference to the same interview, Dr Gurry has indicated there may be some form of “international architecture” on TK in about two years from now, once the negotiations on TK resume next month at WIPO. You will recall this is something we have briefly discussed on the blog, but this has mostly been at third remove courtesy folks in Geneva (e.g., KEI and IP Watch), who have been keeping a much closer eye on things.
EPO and USPTO get access to TKDL. What about the eligibility of Indian Patent Office ?
What a shame the Mint can’t spell Gurry. That’s an embarassing mistake. I have tried to alert them through the comment function but no response so far.
May anyone explain a European patent attorney not familiar with this field what is going to be the use of the patent offices of a database containing confidential information. My initial understanding of the interest of making accessible identified TKs in the TKDL to patent offices was that it would enable those patent offices to extend prior art searches to such TKs. However, for a prior art to be considered against an invention claimed in a patent, it must have been public, i.e. not confidential. I seem to be missing one element of the story, but am unable to identify which one. Thanks for shedding some light on this point.
Dear Anon1,
As you have rightly mentioned, the word ‘prior art’ is meant to encompass everything that has been published, presented or otherwise disclosed to the public on the date of patent (the prior art includes documents in foreign languages disclosed in any format in any country of the world). I also do not know how ‘confidentiality’ can be maintained if TKDL is treated as ‘prior art’ by EPO.
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 TK associated with the invention to the claimant. Patent Examiner can limit the scope of a patent claim or reject it altogether, only if he/she gives the relevant extract from TKDL to the inventor to show that it is a “prior art”. It is going to be a great opportunity for the fraudsters to file patent applications purely on conceptual grounds (which would look like as if they had performed the invention), only to see that they could fetch the authentic information on a TK practice/product.
I had been raising this concern for a quite long time. It went unnoticed until Spicy IP took serious note of it.
Thanks to Spicy IP and Sumathi for taking this debate forward.
This seems to be the future of patent law — the arrangement here and the reference to “international architecture” certainly appear to indicate that some form of “harmonization” (i.e., one-world patent system) is in the works. Whatever one’s opinion of such a consequence, it could certainly contribute to increased efficiency in patent litigation, not to mention potential improvements to international relations.
I strongly believe that Kerala IPR Policy can address the TKDL glitch. Please find below the news appeared in Hindu Business Line today viz. 13/02/2010 (titled “IPR policy resolves issues in knowledge sharing”)
The IPR policy of the Kerala Government released in 2008 may have prescribed the perfect antidote for a perceived glitch in the national Traditional Knowledge Digital Library (TKDL) that lends itself to private appropriation by vested interests.
Codification of traditional knowledge (TK) in digital libraries and sharing the same with patent offices may be a viable solution to direct misappropriation, but it still leaves scope for cosmetic improvements on TK that is not accessible otherwise.
The proposal to enable codification of community-owned TK further compounds the issue, according to Mr R.S. Praveen Raj, a former examiner with India Patent Office and currently a scientist with the National Institute for Interdisciplinary Science and Technology (NIIST) here.
This amounts to gross injustice being perpetrated on those communities whose TK comes to be shared with patent offices.
The Kerala IPR policy squarely addresses this problem, Mr Raj said. The policy document proposes to commit all traditional knowledge, including traditional medicines, to the realm of “knowledge commons” and not to the public domain.
Knowledge commons refers to the knowledge which is the collectively produced sphere of ideas and which is left unencumbered for the greater benefit of all.
The ownership is attributable to the State/Crown, given the fact that TK is an accumulated traditional wealth and a preserve of its practitioners, tribal communities and families, all of whom act as deemed “trustees” of the State/Crown.
Hence, the intention of the proposed legislation is “not exactly the creation of rights on TK” but assigning some (not all) of the rights owned by the State to those deemed trustees in lieu of their willingness to put the TK to the realm of knowledge commons.
While the policy envisages proprietary rights on traditional knowledge, all the right holders will be deemed to be holding their rights under a “commons licence”, wherein the right holders will permit others the use of the knowledge in their possession for non-commercial purposes.
It is further stipulated that any development made using this knowledge licenced under the above obligation should be put back to the realm of knowledge commons, hence denying the scope of patenting thereof.
Though the policy envisages putting the developments made on TK back to the realm of knowledge commons, path-breaking inventions like development of a new drug molecule or the process thereof which involves substantial developmental costs need not form a part even if TK may form the basis of its origin, Mr Raj said.
The ultimate aim of the legislation is not to protect the financial interests of the TK holders but the benefit of the society at large, as is the case with the fundamental concept of patents. The Kerala IPR policy does not support extending “trade secret” protection to TK and the State has expressed itself against creation of monopoly over knowledge.