In the third part of this article, let us realize the importance
of digital documentation on our traditional knowledge, patenting our
indigenous varieties, formal training in patent related issues, and
the role of scientists.
Digital
Documentation of Traditional Knowledge
People are unaware of what is involved in the challenge of a patent.
One can challenge a patent only if you have substantial data. We had
to collect evidence, back it with the germplasm collection, evaluate
the grain characteristics.
Dr Suman Sahai of the gene campaign feels that ICAR had no data to
fight RiceTec's claims on the novelty of its strains. No data exists
listing the characteristics of the highly prized basmati strains.
There is no information on the distinguishing features of basmati
varieties, their growing characteristics and qualities of grains.
However, after turmeric and neem victory, the country took a hat trick
in basmati case, as no other country has been able to win like this
in USPTO. This was made possible because of documentary evidences
that we put together in the last two years based on the information
available. Thus, it is very clear that documentation of traditional
knowledge is paramount to protect the nation's interest.
In the face of the Indian challenge, Rice Tec has withdrawn most
of its original 20 claims. The case is, therefore, a good example
of how developing countries can defend their property, putting adequate
documented information at the disposal of patent offices in the developed
world. "This is an important case because it shows growing sophistication
in the Indian response to patent battles. In haldi (turmeric) case
we challenged all the claims. But here we focused only on three and
in the end thereby knocked out Rice Tec's entire case'' says R A Mashelkar,
the Director-General of the Council for Scientific and Industrial
Research (CSIR).
International
Patent Classification System
Turmeric, its use in wound healing, was the first fight the Third
World took on, and won. Turmeric was just a starter. It opened up
opportunities. It gave us confidence. One fallout was understanding
the importance of documentation, in a way the rest of the world could
accept. Two, countries like America woke up to ground-level problems.
Our knowledge is not codified. The US office gets 500,000 patent applications
a year and has no option other than an electronic search. Windows
have been opened establishing the legitimacy of traditional knowledge.
The international patent community has accepted this. This has important
ramifications. Subsequently, Dr RA Mashelkar, as chairman of the standing
committee on IT in the World Intellectual Property Organisation took
up the issue and argued that traditional knowledge should be considered
on par with industrial property systems. For the US patent office,
the problem was that traditional knowledge lay in books or in the
head. It was not accessible. It was not available in the International
Patent Classification System, used by patent examiners around the
world. This is when the idea of a traditional knowledge digital library
came.
Of over 100,000 sub-groups in the international classification system,
there is only one, currently, on traditional medicines. Once the library
and our Traditional Knowledge Resource Classification system (TKRC)
are in place, we will have as many as 5,000 entries on indigenous
medicine. The project has started early this year with Rs 1.4 crore
funded by the Union government. The project began with medicine, the
most contentious. This would make the connection between our Sanskrit
shlokas and the patent examiner. Translated into English, a language
they can understand, it will go into the digital library, linked to
the international patent classification system through TKRC. Experts
in intellectual property, IT, indigenous systems of medicine and scientists
work together on this important assignment. It is important because
the indigenous systems talk of symptoms whereas the West talks of
disease.
.In order to improve patent awareness and build our capacity in
IPR, five chairs have been created. Of these, two IPR chairs, at the
Pune and Allahabad universities, are being funded by CSIR. The Bangalore
Law School isWorld Agricultural Forum (WAF) coordinator in India Madan
Diwan explained that had India recorded all its varieties of agro,
medicinal and herbal products under a biodiversity Act it could have
at least got royalties on the ones used by companies abroad to develop
new products. Process patents were not granted if they affected the
natural wealth of a country but we did not have the database to present
our case, he added. Citing example he said foreign companies had used
castor to develop toothpaste, applications relating to hair and skin,
fish yield and cosmetics but India did not have any data to accuse
them of bio-piracy. At the same time India had not done sufficient
industrial research to develop new products from their own bio-diverse
wealth in order to get more process patents.
Indian agencies had filed only 536 patents with the USPTO since 1996
which was too less if compared with the vast traditional plant wealth
of the country. Meanwhile, the transnational companies had acquired
herbal patents including Chesebrough (11), Ambi Incorporated and Procter
and Gamble (08 each) and their applications were for a wide range
of disorders relating to digestion, respiration, psychiatry and inflammation.
In agri-products while India did not have the technology to process
its own wealth, Lion Corporation had patented cumin as blood flow
promoter to be used in drugs and cosmetics. If this state of affairs
continues, it is a safe bet that the west will piggyback to market
leadership on more and more cherished Indian products. However, 21st
century has made origin secondary to destination. We watch helplessly,
as one by one, indigenous Indian products and processes are appropriated
by market-savvy developed countries as we do not have documents to
challenge the patents based on India's Bio-Resources. ....more
