Patentability of traditional knowledge-capsicum this time


The USPTO had introduced an information sharing program with the Government of India designed to prevent the improper patenting of traditional knowledge.  The information being shared expanded the class of publications under 35 U.S.C. §§ 102(a)-(b), commonly used to deny a patent to an applicant.

The Traditional Knowledge Digital Library (TKDL) has been made accessible to the Examiners at the USPTO and as such the Examiners can reference and cite the TKDL information in an office action.

It seems that this provision might be tested soon.  In an application 12/721507 filed at the USPTO, the applicant claimed a process for the treatment of skin cancer which includes topically applying to an affected area of a human patient in need of such treatment a therapeutically effective amount of a capsicum extract (fresh raw Capsicum fruit and a carrier).

The CSIR has submitted a 3rd party protest against the grant of such a patent by pleading that, “”[S]ufficient prior arts are available in Indian system of medicine, e.g. in Ayurveda, Unani and Siddha in relation to the
claims made in the application.”

However, a first office action has yet to be issued in this case and it remains to be seen how (or even if) the Examiner cites the TKDL information repository against the claimed invention.  We shall keep you posted on the same.

Rajiv Kr. Choudhry

Rajiv Kr. Choudhry

Rajiv did his engineering from Nagpur University in 2000 in electronics design technology. He has completed his LL.B. from Delhi University, Law Center II in 2006, while working as an engineer at ST Microelectronics in NOIDA. After his LL.B., he went on to The George Washington Univeristy, Washington DC to do his LL.M. in 2007. After his LL.M., he has worked in the US at a prestigious IP law firm based out of Philadelphia. Till 2014, he was Of-Counsel to a Noida based IP law firm where he specialized in advising clients on wireless, telecommunication, and high technology. Rajiv is a co-founder of RHA Legal, a New Delhi based law firm specializing in IP law, with a focus on high - technology, and patent law. His core IP interest areas are the intersection of technology and IP, Indian IP policy, innovation, and telecommunications patents. He is also an inventor with pending applications in machine-to-machine communications domain (WO2015029061).

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