I recently invited Mahima Rathi, a fourth year student at the National Law University, Jodhpur to write a guest post for us on her research into the Traditional Knowledge Digital Library (TKDL). Mahima had earlier left several insightful comments on the previous TKDL posts and I think it is safe to conclude that given the depth of her research into the topic she can easily write a book on the TKDL.
Mahima’s post, below, explains how although CSIR and the IPO have signed an access agreement for the TKDL, there is little or no evidence of both parties working towards effectively operationalizing the terms of the ‘Access Agreement’.
Unveiling the Link: CSIR and Indian Intellectual Property Office
by Mahima Rathi
Prashant had previously reported about his apprehensions regarding IPO India having access to the Traditional Knowledge Digital Library (TKDL). I’ve been trying to study TKDL and its access policy for quite some time and I think that I can provide some clarity to this existing confusion but not without leaving some food for thought for our readers.
When CSIR provided access to the database to EPO, USPTO and other patent offices, it made headlines and press releases were made to confirm the same which are easily available. The concern about whether IPO India has access to the database has not been raised without reason and the following support the same:
1. Press release or headlines made in relation to the signing of the Access Agreement b/w CSIR and IPO India could not be traced.
2. The IPO India website or its annual reports since 2009 do not even hint at the existence of such a digital library or having access to it whereas IPO was involved in the creation of the same and it admits its involvement.
3. Above all of these (and this point is elaborated below) – when asked about whether it enjoys access to the database, the IPO itself stated that it has no records available to furnish the desired information!!
Now, in such a factual matrix, if CSIR proclaims that it has signed the TKDL Access Agreement with IPO India, is it worth accepting this statement blindly? To my mind, of course not!! Clarification is always the best remedy and I decided to ask IPO (Delhi Office) by way of an RTI about whether it has access to the database either through the Access Agreement or by way of any internal arrangement with CSIR.
To my surprise, the first communication which I received was the information that my application was being transferred to the Bombay Patent Office as there were no records available with the Delhi Office to furnish the information. To add to this surprise, the Bombay Patent Office returned the application to Delhi asking them to respond. It was only after having been criticized by the Delhi Office and having transferred the application once again to the Bombay Office that I finally received the much awaited reply just to realise that the IPO has access to the database through the internet and they use the following link to access it: http://www.tkdl.res.in/tkdl/langdefault/common/TKDL_AdvanceQuery.asp?GL=Eng
Now, one interesting observation here is that the above mentioned link is the link of the advanced search option of the ‘representative database’ present on the TKDL website which is freely accessibly by everybody and not just the patent offices. This ‘representative database provides access to around 1200 formulations from Ayurveda, Siddha and Unani medical systems. The representative database only has a fraction of the contents actually present in the library. It does not connect one to the actual TKDL database which has information pertaining to over 0.22 million medical formulations. To add further, Mr. V.K.Gupta himself clarified that the servers used in making the database available are developmental servers which are not available on internet and here we have our own Patent Office telling us that they access the database through the internet!! Having read these facts, anybody can conclude that IPO does not have access to the database. But such obvious conclusions are forbidden in this story because when asked to supply the access agreement signed with IPO India, CSIR certainly did so. (The agreement can be accessed over here)
So, finally one question which can be put to rest is that the IPO has validly entered into the agreement with CSIR and it ought to have access to the database. It’s surprising that they are using (if at all) the representative database when they legally have access to the actual database. I’m concerned about how can they be ignorant of this fact!!
Now, if we have a look at the number of instances where TKDL has been brought into use by various patent offices we can find 80 cases for EPO, 14 for CIPO, 2 for IP Australia, 7 for USPTO and 1 for UK Patent Office. Surprisingly, we do not find even a single instance where IPO India has brought the database into use. One of the readers ( in the earlier post) provided this link to indicate the pre grant opposition action by CSIR and to prove that TKDL is in fact being used, but the documents pertaining to the actual submissions of CSIR could not be accessed so I cannot comment on the type of submissions provided by CSIR to the IPO ( It would be great if the same reader could provide us with the details of the submissions) . However, as far as other Patent Offices are concerned, the documents submitted by CSIR (even though in the form of Third Party Observations) are very elaborate. If we see the third party observations, it appears as if CSIR has itself taken the initiative to conduct the search for the genetic resource claimed in the application by using it as a keyword in TKDL Search and maybe that is probably the reason why Prashant uses the term ‘free search reports’ for CSIR’s submissions because all of them are submitted in such an elaborate manner and are made for nearly all applications. (For eg: see this link)
There are very few cases indicating suo moto usage of the database by the Patent Offices which have access to the database as of now.
Keeping this aspect aside and having a look at the contractual obligations (See Responsibilities and Obligations of the User, Clause iii of the TKDL AA) as mentioned in the access agreement, IPO India is obliged to send the number of times the content of TKDL is cited by its examiners during the search process on a quarterly basis. Even in the absence of any specific applications mentioned on the TKDL website, readers have indicated (in the earlier post) that TKDL contents are in fact being used by the IPO. But then if it so, the same should have been reported by IPO India to CSIR as a part of its obligations. And if there have been such reports, what is preventing CSIR from publishing the same along with those of the other offices?
It is difficult to believe that there would not have been even a single application where TKDL could have been brought into use in the past three years i.e. since July 2009 especially when there are so many Indian entities engaged in research related to Indian Traditional Knowledge. The conditions which can arise can either be of complete non usage or even if there has been partial usage, the reports should have been made available.
The quest to find a justification brings us back to the statement of the Patent Examiners (in the earlier post) where they say that they do not even know how to use the database. This is serious breach of obligations on part of CSIR because it is obliged to provide training to use the tools for search and examination to the examiners and even render assistance in search and examination (See Responsibilities of CSIR, Clause (ii) which says that CSIR shall provide training to the user to use TKDL tools for search and examination as and when needed). The reply from IPO India clearly shows the ignorance towards the use of the database by the IPO and the reason is lack of knowledge to use the same. The question is about whose duty is it to prevent such a situation?
I can only say that when CSIR proclaims itself to be the sole custodian of TKDL, it ought to understand the responsibilities that follow the title.
