The Times of India recently reported that the Indian Council of Medical Research (ICMR) is in the process of documenting traditional medicinal knowledge belonging to indigenous communities (tribals) from the Andamans and is even planning on helping them patent it.By way of background, the ICMR is the apex agency responsible for the promotion of biomedical research in India. The TOI piece notes in pertinent part:
“ICMR’s Regional Medical Research Centre (RMRC) is preparing a unique Community Biodiversity Register (CBDR) for the tribals of the Andaman and Nicobar Islands that will document their traditional healing practices, use of medicinal plants, healing record, mode of preparation of plants’ parts and number of patients treated.
Scientists have travelled to 11 of the 15 villages of the Car Nicobar Island, inhabited by the ancient Nicobarese tribe, documenting the use of 124 medicinal plants that are being prescribed to cure 34 different diseases. They have also interviewed 42 Traditional Knowledge Persons (TKP)/folk healers for the project, which is estimated to cost over Rs 38 lakh.
The ICMR plans to acquire patents of these traditional healing techniques for the tribals.
RMRC director Dr Palaru Vijayachari said, “Traditional treasures of the tribal people, like their healing techniques, need to be protected. We are documenting them so that patents can be applied for such practices. We will be documenting all medicinal plants among all accessible tribes. Scientific explanation of the use of the plant will accompany it.”
Given this explicit public announcement of an intention to patent traditional knowledge (TK), I went back and examined the relevant TK provision in our patents act and was struck by the way it was worded. Our Act states in very broad terms that any invention based on TK is not patentable. More problematically, it appears to suggest that no patent shall be granted even if the patent application happens to be from the community owning the TK in question. I extract the relevant portion of section 3(p) below:
Section 3: The following are not inventions within the meaning of the Act….
(p) “an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.”
Does this mean that indigenous communities cannot patent their own traditional knowledge, even if such knowledge is known only to that community and is a “trade secret” in this sense?
If interpreted this way, it is nothing short of discrimination against indigenous communities, actionable as a violation of the right to equality guaranteed under Article 14 of the Constitution of India.
One might also interpret the term “traditional knowledge” as used in the section to refer to only publicly known or available TK? But then, why have such an exclusion at all? Is it not redundant? TK that is publicly known or available will in any case not be patentable since it fails the “novelty” test.
Further, such a definition runs counter to the many definitions that have been proposed thus far for TK protection at the international level.
Illustratively, the most recent glossary of terms from a WIPO committee (intergovernmental committee on IP and TK) defines “traditional knowledge” as:
“the content or substance of knowledge resulting from intellectual activity in a traditional context, [including] the know-how, skills, innovations, practices and learning that form part of traditional knowledge systems, and knowledge embodying traditional lifestyles of indigenous and local communities, or contained in codified knowledge systems passed between generations. It is not limited to any specific technical field, and may include agricultural, environmental and medicinal knowledge, and knowledge associated with genetic resources.”
As evident, this definition clearly encapsulates both publicly known community knowledge and knowledge that is “known” only to the community and is therefore a “secret” in so far as members of the general public are concerned.
Apart from the definitional and interpretative problem with section 3(p), this ICMR episode raises other concerns.
Firstly, one hopes that informed consent norms were strictly complied with and that these communities knew exactly what this project was all about and the proposed documentation of their precious knowledge and its subsequent use.
Secondly, while this is a commendable exercise in terms of the potential for the discovery of new drugs based on this knowledge, the ICMR needs to be very careful about what it does with this database.
The TOI piece goes on to suggest (in language this is a bit difficult to fully comprehend) that the database might be made available publicly, so that others could use this medicinal knowledge to arrive at important medicinal drugs and formulation and presumably take patents out on these new products. The article assumes that the patentee would then compulsorily share proceeds with these indigenous communities, based on whose knowledge, the said patented invention came about.
While this may be true for India (given that Indian law mandates prior approval and benefit sharing), it is not true for other countries. Once the database is available publicly, person X in a foreign country (such as the US) can easily use it to formulate an independently patentable invention without in any way compensating the tribals. And this is precisely why a number of countries are fighting hard for an international instrument that would set minimum standards for the global protection of traditional knowledge. Clearly a murky area that needs to be handled with a lot of sensitivity and care.
When it comes to patenting of Traditional knowledge by the ICMR the basic question that needs to be answered is that will the granting of patent rights will protect the rights and interest of the indigenous people having such Traditional Knowledge be suppressed or not?. Cause here the Patent rights will be acquired by ICMR giving them exclusive rights for such use of Traditional Knowledge ….
TK and Indigenous communities is something which is close to my heart. While dealing with this issue, I believe we should see both the sides of the coin.
What important is that the TK, which is abundant in this community, should be treasured and maintained and perhaps researched further for development as per the need of time. And it should not die away in an ‘undisclosed’ form. But equally as Manish rightly pointed out, we should also see that the community from which it is derived should not be exploited. Their interests and rights should be something which is considered significantly.
Thanks for your comments. It is indeed a question of balancing out all interests appropriately—and delicately at that, given the various sensitivities involved.
Also, I just amended the post slightly to also ask another question: if the term TK in section 3(p) includes only publicly available TK, then is the section not redundant? I note in the post now that:
“One might also interpret the term “traditional knowledge” as used in the section to refer to only publicly known or available TK? But then, why have such an exclusion at all? Is it not redundant? TK that is publicly known or available will in any case not be patentable since it fails the “novelty” test.”
Hi
I am a legal associate at ELDF, an environmental law firm based in Noida. My query is regarding who can apply for patents. As per the Act,if my interpretation is right, only individual applicants can approach for patent registration. On what grounds can the community actually get a patent, atleast as per the present provisions of the Act?
Hi ship,
Anyone who is the first and true inventor of the invention can apply for a patent. Further, if that inventor assigns someone his invention then that assignee may also apply for patent. And this assignee can be a natural person or other than a natural person. In given post , you may take an example that a tribal person is an inventor and ICMR could be an assignee, thus ICMR is an applicant in this example.
Anybody can get a patent for his/its invention under the Indian patent act, provided that the invention is novel, non-obvious and is capable of industrial application and that invention does not fall under section 3 and 4 of the act. I hope this clarifies your query.
Dear Shamnad
The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 clearly says that Tribals and Forest Dwellers have right to Intellectual Property and Traditional Knowledge related to Biodiversity and Cultural Diversity. Given below is the concerned section which deals with such rights.
Section 3:- Forest rights of Forest dwelling Scheduled Tribes and other tradional forest dwellers.-
Section (3) (k) :- Right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity.
Moreover, this act defines who are Traditional Forest Dweller.
Section 2 (o):- “other traditional forest dweller” means any member or community who has for at least three generations prior to the 13th day of December, 2005 primarily resided in and who depend on the forest or forests land for bona fide livelihood needs.
Interest thing here is how many years amount to a Generation has also been mentioned. “generation” means a period comprising of twenty-five years”. To my knowledge no other law has ever defined generation. Even the Traditional Knowledge Draft Bill has also failed to do so even though it speaks about generation page after page.
But, Provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
What ICMR is doing is good for the Triabl people and Forest Dwellers. But it should not face a repercussion in any form of Biopiracy. Since this act speaks about intellectual property it includes their cultural art work and any symbol representing and differentiating their sub groups. Meanwhile, care should be taken to avoid any design infringement also.
K.MUTHU SELVAM
IP Advocate
(Former Examiner of Trade Marks)
Dear Muthu,
Thanks very much for offering us this really valuable piece of information. I had no idea that this act expressly states that community has right to IP and TK associated with biodiversity.
Hi Ship:
Communities can always form a trust and have the patent registered in the name of the trust. The Kanis formed one such trust to share the proceeds of the patent that stemmed from an ancient plant whose properties they knew about for centuries called the Arogyapacha. We blogged on this case a long time ago.
just saw the post quickly. having spent my childhood days amongst tribals, i connect with them at a very deep level n hence cant stop myself from responding, however, not in as much detail as i would ve liked to.
(1)but i ve no doubt that your position is correct in the amended form “TK that is publicly known or available will in any case not be patentable since it fails the “novelty” test.””
(2)i would further endorse your call for “….an international instrument that would set minimum standards for the global protection of traditional knowledge.”
-aditya kant
Tks for joining in on the debate Aditya. the blog always benefits from your views.
ship: the earlier blog post of ours detailing out the kani community and arogyapacha is at http://spicyipindia.blogspot.com/2008/01/arogyapacha-green-approach-to.html
Respected shamnad sir here i would like to ask you a question that does ICMRhas a right to get patent over TK? mere documenting it might get them the right to copyright such documents/compilations but my doubt is regard to ICMR getting patent rights since the criteria of patent is not fulfilled here as it comes to requirement of novelty and non-obviousness no matter how wide we interpret this criteria’s according to me Tk does not fall in purview of patentable subject matter
hi..
Read your post on arogyapachaa. interesting one!
I believe we need an alternative law or sui generis for the protection of TK (including genetic resources). Each IPR has its own demerits when we think of it.
Patent: as it is available in public domain, the invention may not fall in purview of patentable subject matter. Even if organisations like ICMR or CSIR, files a patent for an invention which involves the TK (and within the definition of law, the patents get granted) and the community may get their share but what after the term of patent? It would not be wise to associate a time bound protection for something which is existing for generations.
Other rights like Geographical indications, TM are not appropriate to protect TK per se.
regards
S
Unlike the definitions given for traditional knowledge which applies to tribal knowledge also Indian law recognizes the distinction between traditional and tribal knowledge with regard to patentability. Section 3 (o) of The Patent Act 1970 mandates that traditional knowledge cannot be patented. But at the same time Scheduled Tribes and Other Traditional Forest Dwellers Recognition Act Section 3 says that tribal knowledge is their property right. besides benefit sharing is a mandatory proposition conveyed in Biological Diversity Act also.
Rationale in my opinion are Tribal sect has similar characteristics that of a company also. only distinction is they are not aware of the monetary value their information. further more if at all a company misappropriates tribal knowledge they will take a defense that its available to public because tribal people are public in nature. As you have pointed out, nicobarian tribes are closed group. Hence their knowledge only revolves around their people alone. hence one cannot attribute a public knowledge about. in fact just like a company they researched and came to know about the medicinal use of the natural habitat from around a million plant varieties. So i believe ICMR is doing a good job.
Dear Manish:
ICMR is not applying for the patent in its name. But to the best of my reading (of the TOI piece), they have only expressed an intention to help the Nicobarese indigenous peoples to patent in their name (presumably the community will form a trust and have patents in their names)
Dear S: i am personally of the view that trade secrecy is and will contineu to remain the best possible protection for this sort of stuff (not yet divulged to the public).
What is the scope and ambit of “Public Domain” as far as Trade secret is concerned?
Can a Tribal Community claim that their knowledge is in private domain like a R&D company?
(My view Tribal community can)
I agree with you. Trade secret could be the best one in current scenario. But then again, we have certain shortcomings like lack of legal protection (except breach of contract) and thus possibility of ‘misappropriation’ and secondly, the ‘reverse engineering’ (this is more dangerous).
regards
S
@Manish: I believe the ICMR shall provide the aid in filing patents to the tribal folks. But I am very sure that they shall also be the part of the plan as “co-patentee”(read the last para of TOI piece). They surely won’t allow these folks to eat the whole cake 🙂
After reading so much about traditional knowledge, I still cant understand how a tribal community/ICMR can apply for patents for knowledge that has been around for centuries in a given community. I think there should be a sui generis system to protect TK.
@s.. (corect me if am wrong am only a student)
when it is reverse engineered it can be proved that it is based on an existing one. if it is proved again the tribals can claim it.
as far as legal protection is concerned new bill “natioanl innovation act” which accounts for the existing principles contains some protection. even if it is not a law its principles are still judicially pronounced.
ptenatbility is an issue but new act called scheduled tribes act recognises th proeprty right backed by protective discrimination envisaged under the constitution..
again all inventions are automatically protected under trade secret which is feeble.
patent offers a stronger protection
my view correct me if am wrong
Indian law recognizes a distinction between traditional knowledge and tribal knowledge
Reasons:
1. In traditional k it is not possible to pin point the ownership to one single person or a group. But in tribal knowledge it is possible
2. Tribal knowledge is safe guarded under trade secret. The parameters of public domain are important in these circumstances. When u go by the dictionary meaning it is easy to say that tribal are public in nature and hence they are not entitled to this protection. But in my opinion the class of people who are aware of the information is also to be considered while considering the meaning of public domain. For ex: information A is available to 100 persons and these persons are organized in some manner then the besides number the nature of people should also be considered.
further mroe only reason tribals are not patenting their invention they are not aware of it. so they are entitled to obtain patent.
but i disagree if icmr is going for a copatent.unlike arogya pacha case here nicobarias already developed the medicine in toto. it might casue an issue in the future