In this guest post, Sadhvi Sood discusses reports of Nestle’s patent application for Fennel Flower (Kala Jeera) vis-a-vis the concept of traditional knowledge. This is Sadhvi’s second submission to our SpicyIP Fellowship series. You can view her first submission here.
Is Nestlé Seeking a Patent over an Indian Home Remedy?
Since time immemorial, home remedies have been used in India to effectively treat both quotidian health problems like the common flu and chronic diseases like sinusitis etc. When it was reported that Nestlé had filed a patent application over fennel flower (often called “kala jeera”, not to be confused with fennel), many went ahead to vehemently allege that such an outlandish move would prevent the usage of “kala jeera or kalaunji” even in home remedies. In Nestlé’s defence, it needs to be noted they are not claiming the patent over Thymoquinone, a phytochemical compound found in the fennel flower. Rather, their patent application covers “findings of [their] research on the interactions between thymoquinone, or similar compounds, and the body’s opioid receptors, and how this interaction can help reduce allergic reactions to foods”. This implies that other companies can use the said compound, provided their product does not rely on the findings of Nestlé’s research. (And, Nestlé also stated that we will still be able to use fennel flower or Nigella Sativa for cooking and in home remedies!)
Such instances in the increasingly globalized, modernized world represent the dichotomy that exists (and the need to strike a balance) between the mutually exclusive concepts of Traditional Knowledge i.e. TK (community owned knowledge which has been passed down through generations) and Patent (which grants a personal monopoly). Here, I take up only one part of this debate: what is the background, both in India and abroad, against which Nestlé has claimed the aforementioned patent?
Patentability of TK in India?
The availability of TK in “public domain” implies that it consequently fails to be an “invention” under section 2(j) of the Indian Patent Act (the “Act”). Even section 3(p) of the Act clearly imposes a bar on patentability of TK by stating that “[…] traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component […]” is not an invention. Further, section 25(1) clauses (d), (k) and (f) also allow for rejection of the patents on TK in pre-grant opposition suits. Revocation of granted patents is available under clauses (d), (f) and (k) of Section 25 (2) of the Act. (Additionally, sections 3 (b), (c), (d), (f), (h), (i) and (j) are also relevant).
Now, luckily for Nestle, despite the presence of such stringent provisions, it has been witnessed that patents have regularly been granted to medicinal products of Ayurveda, Unani and Siddha (TK) by the Indian Patent Office (IPO). Lack of adequate care by the IPO has provided umpteen exploitable loopholes for firms to get their products patented in this arena. Secondly, the Indian government has recently decided to recognize and allow sui generis methods of protection of IPRs in TK (and Traditional Cultural Expression (TCE)). [Editor’s note: TOI has misreported its headline in the given link]. However, before concluding that this particular move will inherently assist Nestlé in the present case, I must mention that such a manoeuvre on the part of the Indian state has been prompted due to the increase in misappropriation of Indian TK by third parties outside India. Hence, the aim has been to protect TK, not to freely grant patents to firms like Nestlé. And, even if Nestlé seeks to avail the benefits of this upcoming scheme, it has to necessarily comply with all the requirements mentioned in the preceding paragraph.
Patentability outside India
Easy accessibility of TK led to many unauthorized third parties and foreign firms patenting the non-patentable TK, especially traditional medicines and remedies as they existed or with minor variations. This phenomenon has been noted as misappropriation of TK (or “bio-piracy”, a situation where indigenous knowledge is profitably exploited without authorisation and/or recognition). Not surprisingly, India being a hotspot and a hub for TK, has filed quite a few misappropriation cases. For instance, unauthorized third parties have tried to patent turmeric’s healing property, Neem’s anti-fungal property and even the Basmati Rice! Thankfully, all these patents were successfully challenged by India. However, at times, such revocation can be extremely time consuming, costly and cumbersome. Problems further intensified when the country is compelled to file numerous revocation suits. This necessitated codification of the existing knowledge in India, which is now relied upon by Patent Examiners all over the globe. If the patent literature discloses the claimed product or formulation as already existing, the patent application stands rejected. In India, the codification is available in the form of Traditional Knowledge Digital Library (TKDL), which seeks to fill the gap in terms of lack of access to prior TK. (criticism of TKDL over access available here).
Conceivably, if the patent application of Nestlé discloses a formulation which already exists in the TKDL database, it is hard to suggest that Nestlé’s instant claim will be allowed. However, if the formulation is novel and non-existent in the database, then they might have a strong case.
Interestingly, it is not the first time that Nestlé has faced public wrath for filing patent application over Indian traditional knowledge/ remedies. In 2009, this Swiss giant filed for patenting a certain cow’s milk cure, where it was to be used as a laxative (outside India). However, in 2012, India fought its case successfully at the European Patent Office (EPO) over this issue leading to the rejection of its claimed patent.
Assuming that Nestle files for a patent in India over its recent research on “Kala Jeera”, though law strictly bars any grant of patent protection over TK, it may be allowed one. This may happen if it either locates & exploits the existing loopholes in the administration (not the stringent provisions in patent law). However, it seems that the firm will apply for a patent outside India. Whether this will result in bio-piracy ending up with India chasing firm’s patent claim down (or not) will primarily depend, amongst other technical issues, on whether the formulation already exists in TKDL or not.
On a concluding note, it is pertinent to note that when an American firm (Rice Tec) patented Basmati Rice, an Indian national heritage, and started exporting it under the same name, we felt that the bedrock of our culture was being intruded upon. The sentiment runs much deeper and becomes more powerful when traditional, indigenous medicinal knowledge is claimed by foreign agents as their own. This is because we inherently believe that such curative knowledge forms the “core” of Indian culture. Even if Nestle is allowed the patent, it will have to face the fury of Indian public.