India and United States have signed two inter-governmental agreements on Intellectual Property Rights (IPR) to help prevent what they say is the misappropriation of traditional knowledge through mistaken issuance of patents, what some call biopiracy.
‘Biopiracy’ describes a process in which living resources or traditional knowledge and practices are patented, thus applying intellectual property restrictions to their use. The resources in question are predominantly from developing countries, and are the subject of patent applications by companies in developed countries.
The first agreement is the Traditional Knowledge Digital Library (TKDL) Access Agreement signed between the Council of Scientific & Industrial Research (CSIR) and US Patent and Trademark Office (USPTO). The agreement will enable the USPTO to search the database of India’s traditional knowledge compiled under TKDL. CSIR will provide training to the USPTO examiners and staff to help them use TKDL tools for search and examination.
This database will be an important addition to the growing array of search tools on traditional knowledge from around the world that is already available to USPTO examiners. These tools include dictionaries, formularies, handbooks, and historical or classical works, as well as databases such as the TKDL. USPTO examiners use these tools to help prevent the patenting, and thereby misappropriation, of existing traditional knowledge. A listing of some of these publicly available traditional knowledge tools can be found on the USPTO’s Web site.
The new database, developed jointly by India’s Council of Scientific & Industrial Research (CSIR) and the Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH), includes over 200,000 traditional medicine formulations on Ayurveda, Unani and Siddha comprising 30 million pages. The TKDL contains text-searchable English-language translations of these sources, permitting USPTO examiners to search thousands of years of India’s accumulated traditional knowledge. The TKDL also contains translations into French, German, Japanese and Spanish, from these sources, originally written in Hindi, Sanskrit, Arabic, Persian and Urdu.
Earlier, when the USPTO granted a patent on the wound-healing properties of turmeric, Indian scientists protested and fought to get the patent revoked. And, as we reported earlier, after patent was awarded to the U.S. Department of Agriculture and the multinational company WR Grace & Co. in 1995 for the fungicidal properties of seeds extracted from the neem tree, native to India, the European Parliament’s Green Party, India’s Research Foundation for Science, Technology and Ecology, and the International Federation of Organic Agriculture Movements fought to have it revoked on the grounds of biopiracy.
The basis of the challenge to the patent was that the fungicide qualities of the neem tree and its use had been known in India for over 2,000 years. The neem derivatives have also been used traditionally to make insect repellents, soaps, cosmetics, tooth cleaners and contraceptives. In 1995, WR Grace patented neem-based bio pesticides, including Neemix, for use on food crops. Neemix suppresses insect feeding behavior and growth in more than 200 species of insects. But the EPO agreed that the process for which the patent had been granted had actually been in use in India for many years.
Another Memorandum of Understanding (MoU) was signed between the office of the Controller General of Patents, Designs and Trade Marks, Department of Industrial Policy and India’s Commerce Ministry. The MoU between patent offices of the two countries would facilitate comprehensive bilateral cooperation on a range of Intellectual Property Right (IPR) issues focusing on capacity building, human resource development and raising public awareness of the importance of IPR.
See the USPTO Press Release here.
[…] This post was mentioned on Twitter by PriorSmart and Japan Patent, IPpro. IPpro said: U.S. Patent Office Gains Access to Traditional Knowledge Digital Library (TKDL) http://bit.ly/6ZeTFC […]
[…] From a Patent Baristas Post: India and United States have signed two inter-governmental agreements on Intellectual Property Rights (IPR) to help prevent what they say is the misappropriation of traditional knowledge through mistaken issuance of patents, what some call biopiracy. […]
Social comments and analytics for this post…
This post was mentioned on Twitter by priorsmart: From patentbaristas: “U.S. #Patent Office Gains Access to Traditional Knowledge…” – http://cli.gs/e0nhm #europe #trademark #india #iplaw…
Granted, information access is a good thing.
But relying on “traditional knowledge” as prior art raises significant enablement and accessibility issues when it comes time to base a rejection on an allegedly disqualifying reference from this information database.
Ex.: The tea from X herb historically used to treat fever. Company isolates and confirms the active component, purifies and stabilizes it, and combines it with inactive ingredients in a therapeutically useful dose. The tea is so far removed from an enabled disclosure of the produced drug that it’s irrelevant in the patentability analysis.
See also http://bit.ly/4PQEkb
FTA: “The new database, developed jointly by India’s Council of Scientific & Industrial Research (CSIR) and the Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (AYUSH), includes over 200,000 traditional medicine formulations on Ayurveda, Unani and Siddha comprising 30 million pages.”
Homeopathy? Homeopathy claims should be rejected under 35 USC 101 as lacking utility.
I think that, on its face, having access to the TKDL is a good thing that can help ensure that only valid patents are issued.
On the flip side, my fear is that such a directory will be used in a heavy-handed way to reject many deserving patents, particularly using the ubiquitous obvious rejection.
In my mind, the critical issue is how the information is applied.
Ed.
I wish you’d refrain from using the word “biopiracy”. No matter what patents Grace received, it couldn’t have prevented others from doing what they’d been doing (allegedly) for thousands of years. Conversely, “traditional knowledge” should not necessarily preclude a company that invests in identifying and isolating a particular active component from obtaining patent claims of appropriate scope and kind – particularly when, after so much time, no one else has isolated or characterized that active. That term “biopiracy” sounds more like “sour grapes” to me.
Dan,
I agree with you, the word biopiracy has very negative connotations and it is misleading. I will make a note in the text to try to clarify.
Editor
In response to my Freedom of Information Act request, the USPTO produced the Agreement and Memorandum of Understanding between the US and India controlling the USPTO’s access to India’s traditional knowledge database. The documents are here: http://j.mp/6Zxqq8 .
I haven’t thought it all the way through, but is anyone else concerned that patent applicants are forbidden from accessing the database that US Examiners will now be mining for prior art?
[…] patentability claims which should already include reviewing traditional knowledge. In fact, the United States and the European Union already protect India’s traditional knowledge using existing prior art […]