‘Lawyers prevent open access to the TKDL’


That lawyers are a universally disliked community is well known, and probably brings resigned smiles to several faces. But it is truly amusing to discover that this has what has prevented India’s “pioneering” Traditional Knowledge Digital Library (TKDL) from opening up access to researchers. (Image from here.)

Lawyers: Keep out!

In a brief conversation recently, Samir K Brahmachari, the Director General of the Council for Scientific and Industrial Research (CSIR) (the institution behind the TKDL) revealed that the TKDL would remain available only to various patent offices who have entered into bilateral access and non-disclosure agreements with them. When asked how researchers could ensure they were not encroaching on TK when filing patent applications, the DG said there was no possibility at present of allowing researchers or innovators access to the TKDL, as, and I paraphrase, ‘lawyers would somehow find a way out of it.’

In fact, it appears that TKDL would be willing to open up the database, if only someone could come up with a model that keeps lawyers out of the system, and ensures that they are unable to access any data. Clearly, the TKDL is worried that the moment information from the database becomes available, lawyers will eventually work around the existing information to meet the requirements of inventive step for obtaining a patent grant.

Quite a conundrum, this: how on earth will you keep lawyers out of the system?! Any ideas?

The DG was speaking to members of the audience at the Conference, which included myself, after delivering an opening address at International Conference on the Utilization of the Traditional Knowledge Digital Library as a Model for Protection of Traditional Knowledge, organised by the World Intellectual Property Organisation (WIPO) and CSIR held in New Delhi recently.

Versus the OSDD?

The DG’s comment was particularly interesting because it came right after he announced a proposal at the conference to “open up” 1% of the traditional medicine formulations contained in the TKDL for the purposes of medical research. The goal is to help scientists develop drugs for infectious diseases affecting the developing world, in an open innovation model. This proposal appears to be an attempt to tie together the TKDL with another CSIR project that has received occasional coverage on this blog – the Open Source Drug Discovery (OSDD) Project.

Given that data made available through the OSDD project is accessible to anyone, it evidently means that the CSIR has no problem with lawyers potentially accessing the 1% of the TKDL that will open up if such a proposal goes through.

TKDL’s record at Patent Offices

For those of you who don’t know, the TKDL has an in-house team of people who actively seek out pending TK-related patent applications in various patent offices across the world, and file oppositions or evidence against them, wherever it is felt that grant is not justified.

This methodology has had some success, as we have reported earlier. The European Patent Office, for instance, has set aside its original intention to grant patents in at least two cases, while 33 applications were withdrawn by the applicants themselves. CSIR claims that around 400 applications pending in various other patent offices have also been similarly challenged.*

(*Until now, the TKDL has shared information only on the status of certain applications at the EPO. I have tried on occasion to elicit some statistics about applications in other offices, including India, but with little success.)

By way also of a minor update on the bilaterals with international patent offices, we also have news that agreements with offices in Japan and New Zealand are ‘round the corner. These two will join a growing list of offices associated with the TKDL, including the Indian IPO, the EPO, and the USPTO.

7 comments.

  1. AvatarAnonymous

    the reason stated is strange(lawyers working around to invent inventive step!).after all there is an institution vested with the job of countering this,should this be attempted.opening TKDL will do more good than keeping it away .chances for misuse will be there and remedies do exist.

    ps:i am not a lawyer!

    Reply
  2. AvatarSumathi Chandrashekaran

    Hi Anon – thanks for your comment. Quick clarification – working around inventive step specifically is my interpretation of what TKDL may be worried about – no one from TKDL or CSIR mentioned that exactly. There may be other reasons why the prospect of introducing lawyers into the picture worries them so…

    Reply
  3. AvatarAnonymous

    notwithstanding your interpretation,isnt it silly that tkdl is being kept away from public.its worth filing an RTI.

    first Anonymous

    Reply
  4. AvatarSumathi Chandrashekaran

    #first anon – agreed that non access to the TKDL is entirely silly. That was the whole point of the post! 🙂 This was also a critical part of my conversation with the DG, CSIR.

    Unfortunately, the discussion became a little uncomfortable after he and certain others realised my own background in law. The usual lawyer jokes were also bandied about, which I politely ignored. There’s only so long that the TKDL can keep things out of open access.

    What would an RTI question, though? Perhaps an inquiry into the data sharing policies they have entered into may reveal something. I was told informally, that the TKDL may have such data-sharing policies with research institutions. Which means that a scientist/researcher working within an institution which has entered into such an agreement may potentially have access to the TKDL. Even if such a a policy exists, an individual entrepreneur, without any institutional support, however, would not have such access.

    Your thoughts?

    Reply
  5. AvatarAnonymous

    TKDL represents collection of ancient Indian knowledge,translated into a language, with which most of us are familiar.other than the efforts in collating and translating ,its owned by every one by virtue of the fact that the creators of the knowledge are our ancestors .all of us know to some extent some minor aspects(like benefits of tulasi or neem or soapnut or brahmi,) which,when put together becomes TKDL.
    it is beyond my ability to say who should own the knowledge but we should not let it remain secret.by sharing , the benefits multiply and they cannot be even envisaged.just think of internet .wish Shamnad can take up this matter .

    really painfull to hear comments about profession which shows that they dont have reasons to answer.

    #first anon

    Reply
  6. AvatarPatent lawyer

    In my opinion, the TKDL managers have to take a position whether they consider the Indian traditional knowledge as prior art or as confidential information.
    If their main goal is to prevent the patenting of any TK, then they should rather make it publicly available, so that anyone knows that this is no longer patentable, but of course the risk is that anyone can also improve it and patent improvements.
    If, however, their goal is to extract value from the TK for the benefit of the communities having developed such TK, then they should rather keep it secret and exploit it as confidential information, the use and exploitation of which they can then control, and extract revenues therefrom (somehow like genetic resources under the CBD). Of course, the risk here is that a confidential information can possibly obtained independetly, and then looses certain of its value.
    What they are today trying to do is both, which is very much unfair for the general public, and any company involved in the research and business of life sciences (including Indian companies), which are taking the above-mentioned risks in their daily activities.

    Reply

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