The TKDL ‘free access’ agreements with the EPO, JPO & USPTO: Subsidizing foreign patent offices?


We recently managed to get our hands on the ‘access agreements’ entered into between CSIR and the EPO, JPO & USPTO for the right to use the Traditional Knowledge Digital Library (TKDL). The access agreements can be accessed over here, here and here. The TKDL is a significant achievement, in that it is has managed to digitize and translate into several languages a vast amount of information pertaining to India’s traditional knowledge. CSIR must receive its due share of credit for piloting this ambitious project. The TKDL was a direct response to the outcry against the patenting of India’s traditional knowledge at the USPTO and EPO. The three most famous examples of such patenting are the patents for neem, turmeric and basmati. The idea behind the TKDL was therefore to foreign patent offices access to a digital library which would aid them in prior art searches for those inventions which were hitherto found only in traditional texts in ancient books in various Indian languages. Image from here.
The ‘access agreements’ with the foreign patent offices are more like MoUs rather than binding legal contracts. Access to the TKDL has been made free for these foreign patent offices. As a natural consequence there is no ‘damages clause’. In the event of any dispute, both parties were expected to ‘seek an amicable settlement’. 
I don’t understand as to why exactly CSIR is offering these foreign patent offices, free access to the TKDL? The government must have spent a substantial sum of money on creating the TKDL and going by the TKDL website, the library has been extremely useful in denying several patent applications before the EPO. If the TKDL is proving to be such a vital resource to foreign patent offices, CSIR must begin to charge them for accessing the TKDL. It is not like these foreign patent offices are doing India a favour by making sure Indian TK is not patented. At the end of the day the TKDL is increasing the quality of the patents that are granted in their foreign jurisdictions. Thus even these foreign countries are gaining from access to the TKDL. It’s a win-win situation for both India and other countries. 
Besides I’m quite sure that foreign patent offices must be paying to access other scientific and technical databases for their prior art searches. Why then is CSIR giving them free access to the TKDL? Why should Indian taxpayer money be used to subsidize foreign patent offices? Let us not forget that CSIR never shies away from charging the Indian Patent Office for any services that it provides during the recruitment process or even the recent outsourcing deal. One can only hope that CSIR reviews its policy of ‘free access’ to the TKDL.
Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

20 comments.

  1. AvatarAnonymous

    Prashant, another good job that you have done. Keep it up. I have just given my comments in your another blog whereby you have invited guest post in respect of Samsung judgment and have stated that I am disappointed from you when you say that the judgment is of 155 pages and hence you have invited guest post. I would again say, keep it up and do the blog yourself on Samsung judgment (if there is no guest post).
    I think CSIR must have though not only twice but many a times to give free access to different Patent Offices to the TK.
    You have stated “It is not like these foreign patent offices are doing India a favour by making sure Indian TK is not patented. At the end of the day the TKDL is increasing the quality of the patents that are granted in their foreign jurisdictions.” Think from this angle, that on account of free access, no patents are granted at the first instance like they gave for turmeric, basmati and neem.
    I would agree with you for charging for TKDL only if it is true that foreign patent offices must be paying to access other scientific and technical databases for their prior art searches.

    Reply
    1. AvatarShardha

      You have written that the MoU entered into by the foreign patent office(s) and CSIR would be a win-win situation as TKDL would substantially improve the quality of patents granted in the foreign jurisdiction. Forgive my ignorance, but how exactly would the quality of patents granted improve?

      Reply
  2. AvatarMahima

    China and Korea have provided similar TK databases which are online and freely accessible. Maybe CSIR is trying to work in a similar manner w.r.t making it available free of cost. [Just that unlike Korea and China who have not imposed any restrictions on the people who can access the database, TKDL access is available only for Patent Offices and not everyone.]

    Reply
  3. AvatarPrashant Reddy

    Excellent point Mahima. Even the National Knowledge Commission has recommended that the TKDL be made accessible to the general public but for a fee. Incidentally I’ve heard that CSIR scientists have been given a free pass to use the TKDL for their own research. This will be a topic which we’ll cover in the near future.

    Cheers,
    Prashant

    Reply
  4. AvatarPrashant Reddy

    Hi Anon,

    Thank you for the kind words. 155 pages is simply too long a judgment, especially for an interim order. I think the length of the judgment is in itself an indicator of the quality of the judgment. In any case, don’t worry, one of our bloggers should be carrying a post on the order soon.

    Cheers,
    Prashant

    Reply
  5. AvatarMahima

    In relation to availability, in one of my previous communications with Mr. V.K.Gupta, he mentioned that -there seems to be general opinion that TKDL with safeguards can also be made accessable to public funded National R&D institutions subject to the approval of Govt. Maybe we can find that coming up next in some time.

    Reply
  6. AvatarAnonymous

    Prashant, My understanding is very small. By quality of the judgment I do not understand. Whether you want to say it is of good quality or bad quality

    Reply
  7. AvatarPrashant Reddy

    That’s an interesting update. But what is the obsession with safeguards and making it accessible to only public funded national R&D institutions?

    Is CSIR afraid of competition from the private sector?

    Prashant

    Reply
  8. AvatarAnonymous

    tkdl is a nice work of india but the persons who are working there, i mean ayurveda, siddha and unani experts are geting very low payments that is insufficient for them. they are getting 18000 and 25000 rupees per month only. work is hard and the payment is poor.

    regards.

    a worker from tkdl

    Reply
  9. AvatarMahima

    I’m not sure if competition from private sector forms a part of their concerns w.r.t TKDL. What I could gather was that (atleast as of now) they are more afraid of lawyers having access to the database than anyone else.( And Sumathi had reported it earlier.)

    Reply
  10. AvatarAnonymous

    can any one support tkdl staff, who are suffering from much difficult condition, as in all government sections a medicine graduate gets 42, 48 or 50 thousand and in tkdl they are getting only 18000 rupees per month. what a nonsense.

    a worker from tkdl.

    Reply
  11. AvatarMahima

    Hi Anon!

    I wish to seek just a small clarification- w.r.t work of the experts, do you mean the process of translating the formulations?or anything else?

    Reply
  12. AvatarAnonymous

    It seems that the writer have not gone through the TKDL website thoroughly. Before criticizing TKDL he should have gone through it. Its genesis dates back to the Indian effort on revocation of patent on wound healing properties of turmeric at the USPTO and anti-fungal properties of neem at EPO where Indian government spent huge amount of money and took 7-10 years. Besides, in 2000, the TKDL expert group estimated that about 2000 wrong patents concerning Indian systems of medicine were being granted every year at international level, mainly due to the fact that India’s traditional medicine knowledge existed in languages such as Sanskrit, Hindi, Arabic, Urdu, Tamil etc. and was neither accessible nor comprehensible for patent examiners at the international patent offices.
    The Access agreement was vetted by senior Government authorities and other eminent like Attorney-General Soli Sorabjee. TKDL Access Agreement is unique in nature and has in built safeguards on non-disclosure to protect India’s interest against any possible misuse. The Patent offices cannot make a third party disclosure. No patent are granted at the first instance on account of free access, instead it enables cancellation / withdrawal of wrong patent applications concerning India’s TK at zero cost and in time period of few weeks. We can recall the cases of Enola bean and Monsanto soybean where Mexico, only after more than 10 years of legal battle, was able to get the patent on Enola bean at USPTO cancelled in July 2009. Similarly the cancellation on Monsanto soybean patent happened in July 2007 at EPO after 13 years of legal battle.
    Till date TKDL is the only practical and successive tool for protecting India’s rich Traditional Knowledge (TK).

    Reply
  13. AvatarAnonymous

    Prashant and other Bloggers, I want to mention that India has signed TKDL Access Agreements with EPO, USPTO and other International Patent Offices. I have gone through to the TKDL website (http://www.tkdl.res.in) many times and observed that a great mechanism is used for protecting the misappropriations. I am concerned to this research for a long time and found the outcomes extremely effective.
    Challenging the patents at International Patent Offices is a long drawn process and is expensive. For example, Mexico, only after more than 10 years of legal battle, was able to get the patent on Enola bean at USPTO cancelled in July 2009. Similarly, cancellation on Monsonto Soybean patent happened in July 2007 at EPO after 13 years of legal battle. Such other examples can also be extracted from the TKDL website.
    India is the only country in the world which has set up an institutional mechanism (TKDL) to protect its Traditional Knowledge and is able to prevent grant of wrong patents. TKDL enables cancellation / withdrawal of wrong patent applications concerning India’s Traditional Knowledge at zero cost and in time period of few weeks.

    Reply
  14. AvatarAnonymous

    I think CSIR-TKDL is doing a great job by not only stopping the wrong patents but also protecting the traditional knowledge of India. As you can see from the link of TKDL Outcomes on the website (http://www.tkdl.res.in/tkdl/langdefault/common/outcome.asp?GL=Eng), it has succeeded in 95 patent applications of different patent offices and I believe all this has happened by giving the free access to the International Patent Offices. Otherwise, if any fee is being charged, TKDL might not be used fully for checking the prior art of India’s Traditional Systems of Medicine. Moreover, the agreement made with different patent offices is based on non-disclosure policy. Under the agreement, patent examiners can utilize TKDL for examination purposes only and cannot reveal the content to any third party. Instead of appreciating the works done by TKDL, we are doubting it, is not good on our part which is pioneered in protecting the national interests in the area of traditional knowledge. TKDL is basically hampering the benefits of MNCs and it seems that the author is more interested in promoting them.

    Reply
  15. AvatarAnonymous

    this is not only translating the formulations. tkdl is a team and most of the members do the same work, i mean some of them translate the formulations, some edit it, some freeze it and some of them work for third party observation, and the any one can do any work. for example the junior experts who are paid only 18000 rep month also do the work of third party observation. they search for patent applications and on relevant applications they do what you are appreciating for.
    thanks lot.
    regards
    a worker from tkdl

    Reply
  16. AvatarMahima

    Every coin has two sides and TKDL is not an exception to it. It is a crucial question to examine whether the success stories mentioned on the TKDL website under the heading of Major Milestones are truly successful. A comparison of the status of applications on the TKDL website and the actual website of the patent office( particularly EPO) would be helpful in revealing the true story.

    Reply
  17. AvatarAnonymous

    At the outset, I appreciate the efforts of Mr. Reddy and the initiatives taken in uploading the TKDL Access Agreement on the site. The issues which he has raised in the Blog relate to “Why CSIR is providing free access to TKDL to International Patent Offices when it has incurred huge costs in creation of TKDL?”

    Answers to issues raised by the Blogger lies primarily in the Access Agreement which he has uploaded. If he has taken the same time for reading the Access Agreement, he would have got the answers himself. I have gone through the Access Agreement carefully and I would like to reiterate the following:-

    “Whereas Govt. of India has duly authorized CSIR to execute this Agreement. Whereas CSIR is the sole custodian of the TKDL proprietary and original database on behalf of Govt. of India.”

    The above statement clearly shows that TKDL belongs to the Nation and CSIR has executed the Agreement on behalf of Govt. of India. National Governments do not enter into International Agreements for the sake of few thousand dollars. Rather, such Agreements are done for larger National objectives which, in this case, are the following:-

    (i) Prevent the misappropriation of India’s Ayurveda, Unani, Siddha, etc. at International Patent Offices by establishing prior art; and

    (ii) Safeguard the TKDL content so that they do not get mis-utilised by the misappropriator normally the multi-national companies and encourage them for filing more such wrong patents, because TKDL provides the entire knowledge of these systems on a press of a button in a language understood by them. I also suggest the blogger to read from his uploaded Access Agreements, the responsibilities and obligations of users:

    “The user shall not disclose any information of TKDL content to third parties unless it is necessary for the purposes of patent grant procedures.”

    By the provision of this clause in the Access Agreement, Govt. of India not only has made the content accessible to examiners, at the same time, have ensured the complete safeguard against mis-appropriators.

    The commercial database who charge fee for access are in no position to give such conditional access. Such Agreements are only possible at Govt. level and TKDL cannot be viewed from the private sector perspective with the sole objective of earning few dollars. Strategy of TKDL has given enormous outcome which blogger should have seen at TKDL website wherein around 100 cases where patent applications were filed on India’s traditional knowledge have been cancelled/withdrawn, at no cost to the Nation in the last two years, in sharp contrast to the case of Neem invalidation at US Patent Office, which was fought for 10 years, Enola beans patent fight at European Patent Office was for 10 years, Monsanto Soya bean patent at European Patent Office was fought for 13 years. In fact, Govt. of Peru has established an Anti Biopiracy Commission in 2006 and during the last 6 years of efforts so far succeeded in cancellation or withdrawal of around 6-7 patent applications. The cost of challenging a single wrong patent granted at International level including the cost of litigation, travel, stay and oral hearing, etc. may exceed a million of US dollars. The total cost of creation of TKDL which I have heard in some of the workshops, is less than the cost of fighting two such cases. So, huge cost is a relative term and needs to be seen in the perspective. I would like to advise the blogger for activities which concerns National strategic interest, as any Indian we need to be more careful before making confusing comments which may not be ill-intentioned but certainly are ill-conceived.

    Reply
  18. AvatarAnonymous

    no body is helping hand for TKDL workers who are suffering from this survival chaos..All are medical graduate here but getting lowest salary in the system..it’s very painful condition for the TKDL staff.

    Reply
  19. AvatarAnonymous

    There is the remuneration of translation work of the international languages @ Rs 4/word
    this remuneration is being paid into tkdl for German language also but tkdl staff is engaged into translation and transcription editi ng identifieng of many foriegn languages along with other aspects of work.But they are paying only 18000/ -25000/month. Is it justified ?

    Reply

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