The Traditional Knowledge Digital Library(TKDL) which we have often blogged about on this blog for reasons that are good, bad and ugly, is an ambitious project, by CSIR & the Ministry of Health, Govt. of India to digitize and compile various traditional knowledge resources in India, into a digital searchable database.
Although the TKDL has been rightly accused of over-exaggerating claims of its effectiveness, in certain cases, there is no denying that it has been very useful in opposing at least a few bad patents.
However the strange part of the TKDL story is that only foreign patent offices are allowed to use TKDL or to be more precise only the European Patent Office & the U.S. Patent Office. For some reason, which is impossible to fathom, the Indian Patent Office, which is a part of the Indian Government is not allowed any access to the TKDL. In comparison, not only does CSIR sign access agreements with the EPO & the USPTO to access the TKDL, it also provides search reports to both these offices, based on the TKDL, free of cost.
We are therefore living in this absolutely absurd situation where CSIR has deemed it necessary to protect only the Americans & Europeans from bad patents. Indians for some reason are second class citizens who do not require to be protected from bad patents. Just have a look at the TKDL’s new & improved website – they mention only European, American & Canadian patents which they have managed to stall or amend. There is not a single Indian patent mentioned over there because CSIR does not offer the same services to the Indian Patent Office.
What make the situation even more absurd, if it could get any more absurd, is that some of the patents which CSIR & TKDL have opposed in the U.S. & Europe, have also been filed in India and in all likelihood will proceed to grant because TKDL does not provide the Indian patent office with the same services that are provided to the USPTO & the EPO.
I’ll discuss just three examples from the list of patent victims made available on the TKDL website:
(i) Avesthagen Ltd., a Bangalore based company, filed for a European Patent, bearing No. EP2152284on the 29th of June, 2007, for a “synergistic ayurvedic/functional food bioactive composition”. After an adverse search report from the EPO, part of which was based on TKDL references and an independent intervention by the management of TKDL, Avesthagen Ltd. did not reply to the EPO therefore resulting in a deemed abandonment on 6th January, 2012. Now an interesting fact is that the EP application claimed its priority from an Indian patent – 1076/CHE/2007. The Indian application has gone through one round of examination and the patent examiner raised several objections including prior art but has made no reference to the TKDL because he has no access to the TKDL. The patent agents for the patentee, presumably on instructions from the patentee, do not seem to be inclined to abandon the patent application in India because on 24th January, 2012, i.e. about 18 days abandoning their EP patent, the patent agents in question filed a reply to the Examination Report of the examiner defending the claims of the original patent application and seeking a grant of the patent.
(ii) The second case is EP EP1933625 filed by Laila Nutraceuticals a Vijayawada based company for a “Process for producing enriched fractions of Tetrahydroxycurcumin and Tetrahydrotetrahydroxy-Curcumin from the extracts of Curcuma Longa”. The TKDL website claims its third party intervention, resulted in Laila Nutraceuticals amending their claims on the 27th of April, 2011. The desi counterpart – Indian application 881/CHENP/2008 is still awaiting examination before the Chennai Patent Office. But it is unlikely that the same objections raised before the EPO, will be raised by the Chennai Patent Office for the simple reason that they don’t have access to the TKDL database.
(iii) The third case is US Patent Application No: 20100203078, also filed for by Laila Nutraceuticals, this time for “Anti-obese compositions containing holoptelea integrifolia extracts”. The TKDL website claims that the USPTO ordered amendments of the claims based on the TKDL evidence. This application too is proceeding in India as 0926/CHE/2010. While this application is awaiting examination before the Indian Patent Office, it is unlikely that this application will run into the same rough weather as it did before the USPTO for the simple reason that the Indian Patent Office does not have access to the TKDL.
Conclusion: It has been almost three years since the USPTO and EPO were given access to the TKDL. Within these three years, the TKDL has claimed significant success in its mission to prevent patenting of TK before these offices. But the question remains as to why exactly the Indian Patent Office has not yet been given access to the TKDL especially when it is the Indian Government that has paid for the entire database. We must be the laughing stock of the patent world – only in India will one government institution discriminate against another government institution and in favour of foreign institutions. If anything, the TKDL is desperately needed in India of all countries because our desi companies have the best access to the TK either through formal or informal mechanisms. It is highly likely that these companies, like Laila above, are researching and filing for patents based on information which must be deemed as traditional knowledge. When is the CSIR going to give the IPO access to the TKDL?