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India – Protecting Traditional Knowledge

In March 2009, India completed the compilation of its Traditional Knowledge Digital Library (TKDL), the pioneering digitised database of traditional knowledge handed down over generations. Being rich in traditional therapies of medicine and the knowledge of health remedies, India has been struggling to protect them from being patented by other countries. The lessons from neem and turmeric, which were patented in the US and EU, had been learnt and with over Rs200,000 formulations from Ayurveda, Siddha and Unani systems the library is on its way to include around 200 yoga postures to save them from piracy. The TKDL contains text-searchable English-language translations of these sources. The library thus documents prior art and allows the examiners to search the extensive database prevent misappropriation of traditional knowledge.

The Indian Government entered into a three-year agreement with the EPO in February this year to allow access to TKDL. Recently, the USPTO was also allowed the access to the same. The access agreement was signed between the Council of Scientific & Industrial Research (CSIR), which develop the library, and the EPO and USPTO. The patent examiners in both jurisdictions will now be able to prevent misappropriation of traditional knowledge by establishing prior art. This prevents the traditional therapies of India from being in the public domain. CSIR would also provide training to the USPTO examiners and staff to help them use TKDL tools for search and examination. The USPTO has many other databases and documents available to it for prior art search on its website, including dictionaries, formularies, handbooks, and historical or classical works. At the same time, the USPTO has urged other countries to also compile their traditional knowledge and make them available to USPTO.

If a patent application attempts to claim an invention within the existing traditional knowledge, a patent examiner will reject the application provided they can find evidence proving the prior existence of that knowledge. Recently, India averted the attempts of a Spanish company Perdix group SL to obtain a patent on anti-vitiligo cream, used to treat leucoderma, which contained melon extracts and was a part of Indian traditional knowledge. The EPO verified the TKDL documents to ascertain that there already existed a prior art.

Indian authorities also provided Unani books to the EPO that mention the use of the technique in cure of the ailment. Upon verification, the EPO rescinded from its earlier decision of granting the patent to Perdix Group. The case has been reopened for substantive examination. All this took only three weeks as against neem, which took ten years, and turmeric which took around three years and all this has been achieved at no costs to the Indian government. It has also been reported that TKDL has impacted at least 36 applications at EPO, with the patent office deciding to set aside the grant of patents. Many applicants even have withdrawn their applications when informed of the TKDL evidence.

In addition, the Indian government has also signed another MOU with the USPTO to facilitate comprehensive bilateral cooperation on a range of IP issues focusing on capacity building, human resource development and raising public awareness of the importance of IPR.