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‘Protection of Traditional Knowledge in India
with reference to Neem, Turmeric, Basmati Rice’

Research Paper

PUBLIC INTERNATIONAL LAW

Name – Aditya Singla

➢ Oscola citation style.


➢ Total words: 2886
➢ Paper word content without Footnotes: 2560
➢ Key words: Protection, Traditional Knowledge, Biopiracy, Indian Patent Act,
Intellectual Property (IP).

1|Page
Table of contents…
1. Abstract……………………………………………………………………………… 3
2. Introduction…………………………………………………………………………. 4
3. The need of protection of Traditional Knowledge………………………………… 5
4. The concept of Biopiracy and the cases of India…………………………………... 7
4.1 The Neem case…………………………………………………………………… 7
4.2 The Basmati Rice case…………………………………………………………… 8
4.3 The Turmeric case………………………………………………………………. 8
5. How Traditional Knowledge is protected……………….………………………..… 9
5.1 Sui Generis…………………………………………………………………..….. 10
5.2 Traditional Knowledge Digital Library (TKDL)…………………………….. 10
6. Conclusion………………………………………………………………………….. 11
7. Bibliography………………………………………………………………………... 12

2|Page
Abstract…
This paper examines the vulnerability of Traditional Knowledge and how the IP laws have
strived to protect it. Traditional Knowledge is protected under Biodiversity Act and there are
certain cases where biopiracy occurs with respect to traditional medicinal knowledge and
usage of plants in treating people for various conditions. The author in this paper will examine
the need for protecting the Traditional Knowledge and discuss the concept of biopiracy with
the three well-known cases of Neem, Turmeric and Basmati Rice of India. Further we will see
how we can protect Sacred Traditional Knowledge, and if there are any constitutional
provisions to protect the Traditional Knowledge.

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1. Introduction…

India i.e. ‘Bharat’, is a country, “which has been nurturing a tradition of civilization
over a period of about 5,000 years. India’s ancient scriptures consist of the four Veda, 108
Upanishads, 2 epics, Bhagavad-Gita, Brahma sutras, eighteen Puranas, Manu smriti, Kautilya
Shastra and smritis.”1 One of the most complicated issue in India is to protect the Traditional
Knowledge which is possessed by the people as inheritance from their ancestors, but is not
protected since it doesn’t contain any inventive character. This knowledge is called ‘Sacred
Intangible Traditional Knowledge’, and the three key articulations that must be characterized
to define the terms “Sacred”, “intangible” and “Traditional Knowledge” are as follow. Sacred
is mainly used to refer to the expressions of Traditional Knowledge that relates to spiritual
beliefs or traditions or something religious.2 Intangible “which simply means incorporeal,
when applied to property, would include intellectual property.”3 It is exactly the opposite of
tangible or materialised Traditional Knowledge.4 Traditional Knowledge “is a living body of
knowledge that is developed, sustained and passed on from generation to generation within a
community, often forming part of its cultural or spiritual identity.”5 One of the most important
factors is that Traditional Knowledge has some ancient roots, and is mostly orally passed from
one person to another.

Traditional Knowledge however is not protected under the existing Indian Patent Act
because Traditional Knowledge in itself is not considered as an innovation as stated under
Section 3(p)6 of Indian Patents Act, 1970, thus not considered as invention and hence, cannot
be patented.7 Section 25 and Section 64 of the Indian Patent Act, 1970, provides (one of the)
grounds for revoking patent applications for protecting Traditional Knowledge.8 The Copyright

1
Mangala Hirwade, ‘Protecting Traditional Knowledge Digitally: a Case Study of TKDL’ (2010).
2
Daniel J Garvais, 'Spiritual But Not Intellectual - The Protection of Sacred Intangible Traditional Knowledge'
(2003) 11 Cardozo J Int'l & Comp L 467.
3
Ibid.
4
Robert K. Paterson, ‘Claiming Possession of the Material Cultural Property of Indigenous Peoples’ (2001) 16
CONN. J. INT'L L. 283.
5
'Traditional Knowledge And Intellectual Property – Background Brief' (Wipo.int, 2019)
<https://www.wipo.int/pressroom/en/briefs/tk_ip.html> accessed 13 September 2019.
6
“An invention which in effect, is traditional knowledge or which is an aggregation or duplication of known
properties of traditionally known component or components”.
7
Section 3 (p), Indian Patents Act, 1970.
8
Vatsala Singh, 'IPR Vis- À- Vis Traditional Knowledge | Khurana And Khurana' (Khuranaandkhurana.com,
2018) <https://www.khuranaandkhurana.com/2018/10/05/ipr-vis-a-vis-traditional-knowledge/> accessed 13
September 2019.

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Act, 1957 of India also doesn’t specifically provide for the protection of traditional culture,
artistic work or folklore but Section 31A provides for protection of unpublished Indian work.
However, Copyrights Act requires certain criteria to be fulfilled and protection is for limited
time period.9

2. The need of protection of Traditional Knowledge…

Traditional Knowledge is very sacred in nature and it is very important to protect such
knowledge. Traditional Knowledge given by our ancestors is being misused in many ways; the
inheritors of that knowledge do not get any benefits from it, but others who use that knowledge
for personal financial gain do.
Forest Dwelling tribes known as ‘The Kanis’ live in Agasthyamalai hills of Western
Ghat mountain region in the Thiruvananthapuram District of Kerala and some live in the states
near Tamil Nadu. While living in the forests allotted to them by the government, they gained a
unique knowledge about the forests and about the medicinal plants. A plant named
‘Arogyapacha’ is used by the Kanis for its anti-fatigue properties and it seems that outsiders
were unaware of the plant till 1987. Later when the All India Council for Professional
Excellence (AICPRE) team visited one of the fields in Western Ghats, Kanis accompanied
them. The Kani men gave the fruit (from the plant of Arogyapacha) to AICPRE team and after
eating they didn’t feel fatigued. AICPRE asked them to share their knowledge of the plant and
offered that if any drug from this plant is made, a sum of money or royalty will be given to
them. From the shared knowledge by Kanis ‘Jeevani’ (herbal formulation) was formulated and
sent to Arya Vaidya Pharmacy (AVP) Coimbatore Ltd. for medical testing. Later Jawaharlal
Nehru Tropical Botanic Garden and Research Institute (TBGRI) contracted with AVP for the
production of Jeevani and in 1996 TBGRI applied for the patent rights for the process of
Jeevani drug. However, “in 2000, Nutri Science Innovations LLC, a US based supplier of
nutritional and functional food ingredients rendered the efforts futile by acquiring a trade mark
on Jeevani without the knowledge of TBGRI or AVP from whom it was importing the drug, it
registered Jeevani under the US trademark rule and sold the product at a much higher price

9
Suchi Rai, 'Traditional Knowledge And Scope For Patent Protection - Intellectual Property - India'
(Mondaq.com, 2018) <http://www.mondaq.com/india/x/668414/Patent/Patent+Claims+And+Their+Types>
accessed 13 September 2019.

5|Page
than originally charged by AVP.”10 It was found that in Kani case there was lack of consent by
the Kanis as there were only few members of the Kani community were involved for
transferring the knowledge. So, the Kanis (who discovered the knowledge of Arogyapacha
plant) however did not benefit from transferring of knowledge with outsiders as the outsider
companies misused the knowledge for their financial gains. The IPR emerged as an important
clog in the Kani case. The TBGRI applied for the protection of process of Jeevani but not for
the protection as a trademark as product patent was not allowed in the Indian Patent Law at
that time. Also, TBGRI didn’t include Kanis as partners in the patent which is seen as a
violation of ethical norms.11 But later finally the application was revoked and Kanis got the
protection of Jeevani and now the money created from this can be used by the Kanis for the
welfare activities.

विद्या ददावि विनयं विनयाि् यावि पात्रिाम् ।


पात्रत्िाद्धनमाप्नोवि धनाद्धमं ििः सख
ु म् ॥

Which means, true/complete knowledge gives discipline, from discipline comes worthiness,
from worthiness one gets wealth, from wealth one does good deeds, from that comes joy.12

न चोरहायं न च राजहायंन न भ्रािृभाज्यं न च भारकारी ।


व्यये कृिे िधधिे एि वनत्यं विद्याधनं सिधधन प्रधानम् ॥

Which means, It cannot be stolen by thieves, nor can it be taken away by the kings. It cannot
be divided among brothers, it does not have a weight. If spent regularly, it always keeps
growing. The wealth of knowledge is the most superior wealth of all.13

10
'Protection Of Traditional Knowledge In India' (Shodhganga.com)
<https://shodhganga.inflibnet.ac.in/bitstream/10603/14508/9/09_chapter%203.pdf> accessed 13 September
2019.
11
Ibid.
12
'Knowledge Leads To Happiness - विद्या ददावि विनयम्' (Blog.practicalsanskrit.com, 2009)
<https://blog.practicalsanskrit.com/2009/07/knowledge-leads-to-happiness.html> accessed 13 September 2019.
13
Jnana Info (I.pinimg.com) <https://i.pinimg.com/originals/f1/dc/ff/f1dcff8d05e01899bb61741fe8074803.png>
accessed 13 September 2019.

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The two ancient Sanskrit Shlokas illustrate how valuable and powerful knowledge is and it also
sounds how important it is to protect the traditional knowledge.

3. The concept of Biopiracy and the cases of India…

Biopiracy is not a legal concept but termed as a socio-political device where indigenous
people, their Traditional knowledge and also their biological resources are illegally used by the
companies or researchers who from this knowledge later claim the IP Rights over the products
which have been gotten from the knowledge of those resources. 14 Biopiracy by its name
suggests that there is piracy of various biosphere elements15 which includes micro-organisms,
plants, animals etc. In 2000, Council of Scientific & Industrial Research (CSIR) study found
that 80% of the total medicinal patents made by US and UK were from seven medicinal plants
of Indian origin. In 2003, there were around 15000 patents made by US and UK from the Indian
origin medicinal plants and later in 2005 the patents increased to 35000 which shows the
interest of developed countries in the knowledge of developing countries. Also, the patent
examiner who comes for inspection is from developed countries and not from the developing
countries which gives the former a free hand to steal and use traditional medical knowledge.16
To get the better idea of how biopiracy takes place we need to study the cases of neem, turmeric
and basmati rice.

3.1. The Neem Case…

Azadirachta Indica is the botanical name of the neem tree and the tree is referenced in
Indian old texts for more than 2000 years ago and has been connected for centuries in
agriculture as an insect and pest repellent, veterinary medicine, cosmetics and toiletries.17
Neem extracts can be used against hundreds of pests and fungal diseases that attack food crops;
the oil extracted from its seeds can be used to cure cold and flu also mixed in soap, it provides
relief from skin diseases, malaria and meningitis as well.18 In 1994, European Patent Office

14
Manuel Ruiz, ‘International Debate on Traditional Knowledge as Prior Art in the Patent System: Issues and
Options for Developing Countries’ (2002).
15
Vandana Shiva, ‘Biopiracy: The Plunder of Nature and Knowledge’ (1997) 35 Choice Reviews Online.
16
Supra note 1.
17
'Cases Of Misappropriation Of Traditional Knowledge' (Shodhganga.com)
<https://shodhganga.inflibnet.ac.in/bitstream/10603/22605/10/10_chapter3.pdf> accessed 13 September 2019.
18
Menon Ramesh, ‘Traditional Knowledge receives a boost from the government’ (2007).

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(EPO) granted a patent to the US Corporation W.R. Grace Company and US Department of
Agriculture for a method for controlling fungi on plants by the aid of hydrophobic extracted
Neem oil. In 1995, a group of international NGOs and representatives of Indian farmers filed
legal opposition against the patent. They submitted evidence that the fungicidal effect of
extracts of Neem seeds had been known and used for centuries in Indian agriculture to protect
crops, and therefore, were unpatentable. In 1999, the EPO determined that according to the
evidence all features of the present claim were disclosed to the public prior to the patent
application and the patent was not considered to involve an inventive step. In May 2000 EPO
revoked the patent which was granted for neem. 19

3.2. The Basmati Rice Case…

Basmati rice is one of the most important aspect of life and known as queen of fragrance.
Basmati rice is originated in the Punjab region of India and has grown for thousands of years.
In 1997 ‘RiceTec Inc.’ which is an American company granted with a patent on Basmati rice
by USPTO. RiceTec claimed a patent on rice grown from Indian Basmati crossed with semi-
dwarf varieties; which was identical to Basmati rice even the name.20 RiceTec named its brand
as ‘Texmati’, ‘Jasmati’, ‘Kasmati’. India challenged this on the basis of grain quality through
Agricultural and Processed Food Exports Development Authority (APEDA). After filing an
application for re-examining the patent rights granted to RiceTec before USPTO; RiceTec
withdrew 15 claims out of 20, which were originally made. This was treated as a blatant case
in international community as it threatens the biological resources, and the traditional
knowledge of the farmers who grow a particular quality of rice (herein referred as Basmati
rice).21 This issue was a clear-cut case of biopiracy and shows loss/theft in three ways; (1) Loss
to Indian exporters of Basmati rice whose markets are stolen by such patents. (2) Loss of
‘intellectual biodiversity heritage’ to Indian farmers who produce varieties of Basmati rice.
(3) and the name ‘Basmati’ itself was stolen.22

19
Supra note 1.
20
Uzma Jamil, ‘Biopiracy: The Patenting of Basmati by Ricetec’ (1998), see also, supra note 17.
21
Ibid.
22
Ibid.

8|Page
3.3. The Turmeric Case…

The tropical herb turmeric has been used in India for thousands of years and is used as a
medicine and as a spice for flavouring the Indian cooking. Turmeric is also used in cosmetics
and dyes. Turmeric traditionally is used as a medicine for centuries to heal wounds and use as
an antiseptic for skin infections.23 In 1995, the University of Mississippi Medical Centre were
granted a US patent on use of turmeric for its wound healing property. Later, an application for
re-examination against the patent granted to the University was filed by The Council of
Scientific & Industrial Research (CSIR) of India with sufficient documented evidence of the
prior art to USPTO. CSIR argued that turmeric was known to India and has been used for
thousands of years for healing wounds and use it as a food ingredient and argued that its
medicinal use was not a novel invention. Their claim was supported by 32 references written
in different languages such as ancient Sanskrit, Urdu and Hindi texts and also in the Journal of
the Indian Medical Association which was published in 1953. Therefore, USPTO revoked their
patent in 1997 and said that use of turmeric was known to India for thousands of years and
hence, the traditional knowledge of India was protected in this case.24

4. How it is protected…

As shown above, the Indian Patent Act doesn’t give protection to Traditional
Knowledge; however, there are ways in which we can protect Traditional Knowledge. WIPO
covers three related areas with respect to Traditional knowledge – Traditional Knowledge on
medicines, agriculture and biodiversity; Traditional Culture Expression; and genetic resources.
The Biological Diversity Act protects the Indigenous Knowledge and The Constitution of India
also gives a general protection to protect Traditional Cultural Expressions (TCEs) under Article
51A (f) which says that it is the duty of every Indian citizen to “value and preserve the rich
heritage of our composite culture.”25

23
Anuradha, R.V, ‘Biopiracy and Traditional Knowledge’ The Hindu (20 May 2001).
24
Supra note 18, see also, Saipriya Balasubramanian, 'Traditional Knowledge And Patent Issues: An Overview
Of Turmeric, Basmati, Neem Cases' (Singhassociates.in, 2017)
<http://singhassociates.in/UploadImg/NewsImages/IPTech%20March17.pdf?utm_source=Mondaq&utm_mediu
m=syndication&utm_campaign=View-Original> accessed 13 September 2019.
25
Article 51A (f), The Constitution of India, 1950.

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Under Intellectual Property, two types of protection is given to protect Traditional Knowledge:

❖ Defensive Protection stops the outsider party from getting IP rights over Traditional
Knowledge and gain benefits from it. For instance, India has researched and made a
database of traditional medicines which can be used as an evidence to prove that those
medicines are part of Indian Traditional Knowledge and are known India for thousands
of years.26
❖ Positive protection gives the rights to all the communities and make them to promote
their Traditional knowledge and control it and stop it from being exploited by the
countries/people. Some of the uses of tradition Knowledge can be protected under the
existing IP law and many countries have specific legislations on the same but the
protection would not be binding on other countries.27

4.1 Sui Generis…

Sui Generis is a Latin word which means “of its own kind” and can be seen as a medium
for the protection of Traditional knowledge. Sui generis provides the legal framework for the
protection of Traditional Knowledge, helps in preventing the misuse of Traditional Knowledge.
It enforces for the rights of indigenous communities over their knowledge, and gives the
provisions of ‘access and benefit sharing’ (ABS) system etc.28

4.2 Traditional Knowledge Digital Library (TKDL)…

The TKDL project was a collaborative project after a signed MOU between Council of
Scientific and Industrial Research (CSIR), Ministry of Science and Technology and Ministry
of AYUSH, Ministry of Health and Family Welfare to collect and protect the information of
Traditional knowledge on medicines (such as Ayurveda, Siddha, Yoga and Unani) which
existed in India in local languages such as Sanskrit, Urdu, Tamil, Hindi, Arabic etc at

26
Supra note 5.
27
Ibid.
28
Supra note 8.

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international level in five international languages which are English, German, French, Japanese
and Spanish.29

5. Conclusion…

Traditional Knowledge has the potential to solve many problems of a man. It is


important to spread the knowledge with the system of ‘benefit sharing’ but by providing
protection to this knowledge and treating it as a valuable asset. As we know that Traditional
Knowledge is mostly orally passed so it is undefendable but recently it is protected under article
8(j) of Convention on Biological Diversity, 1992 and some other acts of India gives the
protection to Traditional Knowledge such as The Forest Conservation Act, 1980, The
Protection of Plant Varieties and Farmers’ Rights Act, 2001, The Biological Diversity Act,
2002 and India’s TKDL. In Diamond vs Chakrabarty30 case, the US court gives the patent to
life forms discovered under sun; which however indirectly protects the (Traditional) knowledge
which people have, with which they discover or invent new life forms. Which shows how
important it is to protect any knowledge and limits the chances of biopiracy. Sometimes gaining
the knowledge is cheap but the end results from that knowledge could be the most valuable and
expensive thing in the era of commercialisation. Protecting it is most important as it helps in
bolstering the Indian economy with novel outcomes from that knowledge. Through Traditional
Knowledge the agriculturalists conserve and maintain the biodiversity and make sustainable
agricultural practices.31

29
'Traditional Knowledge In Indian Scenario' (Shodhganga.com, 2019)
<https://shodhganga.inflibnet.ac.in/bitstream/10603/76722/13/13_chapter%206.pdf> accessed 13 September
2019, see also, Supra note 1, see also, supra note 9.
30
447 U.S. 303 (1980).
31
J. Tarunika and J. Tamilselvi, 'Traditional Knowledge And Patent Issues In India' (Acadpubl.eu, 2018)
<https://acadpubl.eu/hub/2018-119-17/2/105.pdf> accessed 13 September 2019.

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Bibliography…

1. Mangala Hirwade, ‘Protecting Traditional Knowledge Digitally: a Case Study of


TKDL’ (2010).
2. Daniel J Garvais, 'Spiritual But Not Intellectual - The Protection of Sacred Intangible
Traditional Knowledge' (2003) 11 Cardozo J Int'l & Comp L 467.
3. Robert K. Paterson, ‘Claiming Possession of the Material Cultural Property of
Indigenous Peoples’ (2001) 16 CONN. J. INT'L L. 283.
4. 'Traditional Knowledge And Intellectual Property – Background Brief' (Wipo.int,
2019) <https://www.wipo.int/pressroom/en/briefs/tk_ip.html> accessed 13 September
2019.
5. “An invention which in effect, is traditional knowledge or which is an aggregation or
duplication of known properties of traditionally known component or components”.
6. Section 3 (p), Indian Patents Act, 1970.
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(Khuranaandkhurana.com, 2018)
<https://www.khuranaandkhurana.com/2018/10/05/ipr-vis-a-vis-traditional-
knowledge/> accessed 13 September 2019.
8. Suchi Rai, 'Traditional Knowledge And Scope For Patent Protection - Intellectual
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<http://www.mondaq.com/india/x/668414/Patent/Patent+Claims+And+Their+Types>
accessed 13 September 2019.
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<https://shodhganga.inflibnet.ac.in/bitstream/10603/14508/9/09_chapter%203.pdf>
accessed 13 September 2019.
10. 'Knowledge Leads To Happiness - विद्या ददावि विनयम्' (Blog.practicalsanskrit.com, 2009)
<https://blog.practicalsanskrit.com/2009/07/knowledge-leads-to-happiness.html>
accessed 13 September 2019.
11. Jnana Info (I.pinimg.com)
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accessed 13 September 2019.
12. Manuel Ruiz, ‘International Debate on Traditional Knowledge as Prior Art in the
Patent System: Issues and Options for Developing Countries’ (2002).

12 | P a g e
13. Vandana Shiva, ‘Biopiracy: The Plunder of Nature and Knowledge’ (1997) 35 Choice
Reviews Online.
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accessed 13 September 2019.
15. Menon Ramesh, ‘Traditional Knowledge receives a boost from the government’
(2007).
16. Uzma Jamil, ‘Biopiracy: The Patenting of Basmati by Ricetec’ (1998).
17. Anuradha, R.V, ‘Biopiracy and Traditional Knowledge’ The Hindu (20 May 2001).
18. Saipriya Balasubramanian, 'Traditional Knowledge And Patent Issues: An Overview
Of Turmeric, Basmati, Neem Cases' (Singhassociates.in, 2017)
<http://singhassociates.in/UploadImg/NewsImages/IPTech%20March17.pdf?utm_sou
rce=Mondaq&utm_medium=syndication&utm_campaign=View-Original> accessed
13 September 2019.
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26. Prof. S. Kannaiyan, 'Biological Diversity And Traditional Knowledge' (Nbaindia.org)
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