Patent Office objects to attempts by CSIR & Co. to patent traditional knowledge and access biological resources without NBA approval


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For as long as I can remember, the Indian government and its scientists have never tired of tales of how unscrupulous foreign scientists were trying to steal ‘our’ traditional knowledge (TK) and indulge in ‘bio-piracy’ by accessing biological resources in contravention to the Biological Diversity Act. This was the argument used to first create the Traditional Knowledge Digital Library (TKDL) and then keep it confidential. 
Well, as it turns out, the Indian Patent Office has been going through all TK related patent applications with a fine tooth-comb and the resulting fatalities include patent applications filed by a host of government labs including: the Council for Scientific & Industrial Research (CSIR), which ironically controls the TKDL, the Central Council for Research in Unani Medicine (whose parent Ministry funded the TKDL), the Central Council for Research of Ayurveda & Siddha, the Defence Research Development Organization (which is supposed to be India’s leading defence lab) and the Indian Council for Agricultural Research. 
Several patent applications filed by these labs have been objected to by the Indian Patent Office either on the grounds that they constitute traditional knowledge or/and on the grounds that the laboratories in question are trying to access biological resources without getting the appropriate permissions from the National Biological Authority under the Biological Diversity Act. 
With regard to the objections regarding traditional knowledge, the Patent Office has attacked several of these applications on the basis of the information contained in the Traditional Knowledge Digital Library (TKDL) or on the basis of literature regarding traditional knowledge. A few such applications, with the names of the laboratory are described below: 
(i) Indian Council for Agricultural Research: 3463/DEL/2005; (Traditional Knowledge objections based on TKDL by Controller Shah Alam); 
(ii) Council for Scientific & Industrial Research (CSIR): 1976/DEL/2005 (Controller Monika Yadav objects to patent application on the grounds that requisite permission has not been sought from the competent authority which in this case was the National Biological Authority, since the invention in question pertained to biological resources and the Biological Diversity Act requires that permission be taken from the NBA before such patent applications are filed before the patent office) 
(iii) Central Council for Research in Unani Medicine: 1858/DEL/2006 (TK objections based on the TKDL by Controller S.K.Roy); 
(iv) Council for Scientific & Industrial Research (CSIR): 2185/DELNP/2004 (Controller S.K. Roy cites extensive literature indicating that the claimed invention was known in traditional knowledge); 
(v) Council for Scientific & Industrial Research (CSIR): 913/DEL/2006 (Controller Dr. N. Mukherjee raises several TK related objections on the basis of the TKDL and also lack of permission from the NBA.) 
(vi) Council for Scientific & Industrial Research (CSIR): 920/DEL/2006 (Controller Dr. N. Mukherjee raises several TK objections on the basis of TKDL) 
(vii) Central Council for Research of Ayurveda & Siddha: 1346/DEL/2006 (Controller Monika Yadav cites extensive literature from traditional knowledge journals objecting to invention – the application was possibly dismissed – the controller’s final decision is not available on the website. Section 6, BD Act objections are also raised) 
(viii) Defence Research & Development Organization: 2074/DEL/2004 (Controller S.K. Roy cites extensive literature to prove that claimed invention is traditional knowledge. Controller Roy also objects to lack of prior permission from the NBA under Section 6 of the Bio-Diversity Act.) 
The above applications are only a small sample set of the total number of such applications pending before the Patent Office. 
Given that I’m one to always criticize the patent office for its shortcomings, I think it is only fit that I congratulate both the Controller General and his officers for doing such a thorough job in objecting to these traditional knowledge patent applications and for also enforcing Section 6 requirements of the Biological Diversity Act. 
The larger lesson however is for Indian scientists to tone down the ‘nationalist rhetoric’ on traditional knowledge. The problem of patenting traditional knowledge is as bad in India as it is outside the country and it is very likely that it is more of a problem of perspective on patenting than an active attempt to plunder the country of its resources. 
These examples also demonstrate the lousy job that the TKDL has been doing on Indian patents. In the last seven years, the TKDL has done a hopeless job of scrutinizing Indian patent applications, despite being very active in objecting to TK patent applications before foreign patent offices. Hopefully, this episode should bring TKDL out of its slumber. The double-standards are also apparent in the fact that the TKDL does not list any of the above patents in its ‘kill-list’ available on its website. Presumably the only reason that the TKDL has not done this is because these are Government of India patents. If anything, the Patent Office has adequately demonstrated why the TKDL should be pried free from the clutches of CSIR. 
Further the above examples also highlight the dangers of outsourcing the examination function of the patent office to the CSIR. As we’ve highlighted earlier, such outsourcing creates a terrible conflict of interest for CSIR. 
Lastly, in conclusion, the Section 6 (Bio-Diversity Act) objections demonstrate the complexity and bureaucracy of doing biological resources related research in India. Now that government scientists themselves are facing these problems, it is hopeful that the Government will think of dialling down some of the more draconian provisions of the Biological Diversity Act, 2002.
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).

5 comments.

  1. AvatarAnonymous

    Dear Prashant,
    I have rechecked the TKDL website, it only list the cancelled/withdrawn applications and does not list the pending applications. It is quite possible TKDL will list these cases when these applications get cancelled/withdrawn, therefore your inferences may be quite premature

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  2. AvatarAnonymous

    I am unable to see any thing unusual in the action of the concerned Govt. organisations including CSIR and the action of IPO. Earlier foreign patent offices were quite effectively utilising the TKDL for prior art search now IPO is also utilising which in fact is a correct step and is the legitimate action of Examiners at IPO, in case organisations claiming patents are not able to respond to the satisfaction of Examiners at IPO they shall be denied the grant by IPO that is what an Patent Office is supposed to do, where is the big deal in a normal action,rather grant of patent despite prior art evidence in TKDL would have been incorrect and unusual

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  3. AvatarAnonymous

    The Indian patent office should be very grateful to TKDL as it would be very easy to reject Indian patent applications. Majority of Indian applications related to traditional knowledge are filed by Indian research organizations like CSIR,IISC,IITs etc. They need not waste money on applying for patents now. In all other countries, their patent offices try to protect their native applicants some way or the other.In EPO, it would be very difficult to oppose a native European application while the examiners would be happy to reject an Indian or American application on opposition grounds. In India we have made a laughing stock of ourselves by opposing our own applications filed in India and abroad.All this only to justify the existence of TKDL.

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