 |
| Image from here. |
In response to one of my previous posts on the TKDL project, I received some queries on the possible cost of the TKDL project. Well, predictably, I sent in a RTI query to CSIR for the figures. The response from CSIR can be accessed over here.
As per CSIR, from 2001-02 until March, 2012 a sum of Rs. 15,96,72,589 (Rupees Fifteen crores, ninety six lakhs, seventy two thousand, five hundred and eighty nine). As per the exchange rates in the March, this would mean around US $ 3,053,630 (Three million dollars approx.). Of the total expenditure, a sum of Rs. 82,34,750 (Eighty two lakhs, thirty four thousand, seven hundred and fifty rupees) was on capital expenditure, while the remaining was towards recurring expenditure. I also asked for a list of employees along with their salaries. I was provided with a list of 80 employees, with the highest per month salary being Rs. 46,700 and the lowest salary being Rs. 11,700.
Unfortunately, I forgot to ask for the rank or role of each of the employees so I’m not really sure what those 80 employees are doing at TKDL. I’m guessing that at least some of them are translators responsible for translating the various texts into English and other foreign languages.
I filed another RTI asking TKDL for the number of search reports that they sent out to the EPO and the IPO in pursuance of the access agreements signed with both organizations. CSIR replied informing me that they were not required to submit to the IPO or EPO, any search reports in pursuance of the access agreements but that they did file suo moto representations before the EPO under Art. 115 of the EPC Convention and before the IPO under S. 25(1) of the Indian Patents Act, 1970. Despite knowing exactly what I was asking for they didn’t provide me with the number of such interventions filed by the TKDL, instead they informed me that they would provide such information if I asked for it. Well if they knew what I was asking for, why didn’t they just provide it instead of asking me to apply once again? That response can be read over here.
Having said that, I must give credit where it is due. TKDL has just recently filed two pre-grant oppositions against two patent applications by Laila Nutraceuticals which I had pointed out in a post last month. The US and EU counterparts of these applications were successfully opposed/modified by the TKDL in those jurisdictions. Last month however there were no pre-grant oppositions filed at the time when I had blogged about these applications. I hope TKDL scores similar victories in both these cases before the IPO and that the same are reported on the website of the TKDL. Interestingly, the third patent application that I had written about in the same post, the one filed by Avesthagen, was granted by the IPO (i..e. published under S. 43(2) on the 27th of April, 2012) within seventeen days of my blogging about how the exact corresponding patent application in the EPO was abandoned on the basis of TKDL evidence. It remains to be seen whether TKDL will file a post-grant opposition against this particular application. It may also be noted that the letter granting the patent has not yet been loaded on IPAIRS. Also there is just a three months gap between the patent applicant replying to the examination report and the grant of the patent certificate and the publishing of the patent in the patent journal. That’s pretty quick in my opinion.
Getting back to the TKDL, I think its true test is going to be in opposing patents filed by the government bodies such as the Central Council for Research in Unani Medicine and the Central Council for Research in Ayurveda & Siddha. In several of the first examination reports for these patents applications, the Examiners have raised the objection of Section 3(p) i.e. traditional knowledge is not patentable subject matter. The Examiners do not however refer to the TKDL. I hope the staff at TKDL take cognizance of these applications and file pre-grant oppositions where necessary.
To conclude, I believe that TKDL’s true potential and true value lies in raising the standard of scrutiny of Indian patent applications rather than the patent applications in the EPO or the USPTO. My grouse so far with TKDL was the lack of any victories before the IPO because of the lack of focus on the IPO. For some reason TKDL had become a project catering only to foreign patent offices. The numbers of TK-related patent applications being filed in India are simply enormous and I’m confident that with the right focus the TKDL will be successful in blocking these dubious applications and raising the quality of patent grants in India.
Being closely associated with patent prosecutions at EPO and USPTO from India, particularly with some of herbal formulations, my experiences suggest that TKDL is doing a much credible job in negating inventive step/obviousness (novelty issues appear less) of an invention just by its frequent and detailed appearance in the examination reports. Its erroneous to call a natural ingredient/ herbal invention to be a TKDL related invention and want understanding of pharmaceutics and formulation development issues before commenting on similarities. The different drug delivery systems and formulations developed based on the natural/herbal ingredients related invention their inherent inventive merits which are particularly strikingly difficult specifically for herbals when compared to chemicals. Yes, drug delivery systems and formulations have much to do bring true “therapeutic efficacy”.
An it’s not the patent that gives a workable monopoly to exploit resources in deprivation of others for pharmaceutical patent obtained unduly. It is even harder to get a market approval from EMEA or USFDA to get a market authorization for commercial exploitation of an herbal product. Since patent grant itself is not an indicator of working of patent and consequent deprivation of others, invalidation/post grant options would always be open to provide another level of check based on the real requirements.
It would worth a research on that front to assess how many such patents are getting exploited commercially and then to comment on the stretch/potential/extent of functions of TKDL either in India or in abroad.
Cheers.
ANON_T
It is now clear that TKDL files prior art evidence at IPO similar to EPO. Whether TKDL treats both the offices at the same level can only be ascertained if you do one more RTI as has been suggested by CSIR. In my assessment RTI may confirm to us that your earlier presumption that CSIR/TKDL has not provided operational access to IPO and it does not submit prior art evidence at IPO may prove to be completly wrong . In case you do an RTI pl post it I am also keen to know the outcome. I have great admiration for this initiative of CSIR
TKDL as per its website is for preventing the misappropriation of India’s Traditional Knowledge at International Patent Offices, impact on quality of patents granted at these offices due to TKDL is only incidental