India is rich of biodiversity and the Indian culture and traditional knowledge acknowledge the medicinal value of the biodiversity and its best use. The case is with regard to the patenting of XYZ plant by the US Patent

CS Professional · Intellectual Property Rights - Law and Practice · PYQS · December 2019
India is rich of biodiversity and the Indian culture and traditional knowledge acknowledge the medicinal value of the biodiversity and its best use. The case is with regard to the patenting of XYZ plant by the US Patent and Trademark Office by awarding at least four broad patents for use of XYZ plant, the good old sine qua non of Indian food and medicine. The patents, one of which has been awarded to an NRI scientist duo, Abhiskek and Shayam, of the University of New York confer on the applicant's exclusive rights to specific formulations of powder as the wound-healer, the anti-inflammatory agent. These scientists on their visit to India to their native place have taken the samples of plant XYZ without information and permission of the appropriate State or National biodiversity board regarding their intention of research and development of the XYZ plant. Indian activists protested to that as blatant example of biopiracy. They rightly raise the concern that how can anybody patent something that has been the collective wisdom of a people for centuries ? Indian scientists, too, for a change, have woken up from their complacency. The head of the Council for Scientific and Industrial Research's Intellectual Property Management Division, says the Council will immediately challenge the patents as XYZ's medical uses have been well-documented in India's medical literature. Meanwhile, the Chandigarh-based Central Drug Research Institute, which has been working on XYZ for over a decade, has promptly applied for a patent on XYZ's wound-healing property. The US patent office, defends the patents arguing that while XYZ as a wound-healing ointment has been in public use, its application in the powder form is not known. This argument was not well received by the Indian counterpart and they retorts that the above patent do not satisfy the two most important requisites of a patent claim in US i.e., novelty and non-obviousness. As per them under the US law, a new medicinal property of a known compound could be patented, but not the known property. To secure patent protection even for the new property, the applicant has to submit substantial medical evidence which is not very easy. Questions: How traditional knowledge are protected under Indian IPR regime ?

Answer & Explanation:

There is no specific legislation which protect the traditional knowledge under Intellectual Property Rights (IPR) system. However, certain Act maintain specific provision which deals with the traditional knowledge, like the Section 3 of the Patents Act does not allow any invention to be with relation to the traditional knowledge. The Indian Copyright Act deals with the copyright protection of traditional culture in the form of music (Folklore) or other form expression. Further, traditional knowledge of the farmers with regards to the seeds are preserved in the Protection of Plant Varieties and Farmers Rights Act, 2001. It recognises the contribution of breeders with regards to the new varieties of seeds and farmers rights with regards to the conservation and development of the seeds by traditional means. Apart from that to protect the traditional knowledge from bio piracy Traditional Knowledge Digital Library has been established which maintains the records of various traditional knowledge codified, recognised by the Indian civilisation from centuries. At the time of patent exploitation of the traditional knowledge the Traditional Knowledge Digital Library plays very important role in identifying the true nature of invention.

Topics: Biodiversity and Traditional Knowledge

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