Cases study of Patent

Traditional Knowledge is mostly information held in human memories and is

not written down somewhere.” Traditional Knowledge system does not act in
any kind of isolation and it includes spiritual experiences, various philosophies,
technology & politics, and is strongly influenced by the local traditions and
indigenous practices. Here, the local or indigenous community is said to be the
holder of traditional knowledge, it manages the access and use of it. Such
communities are pretty vast and comprise several categories like agricultural
knowledge and various forms of expressions such as folklores, dance, song,
designs, artwork, handicrafts etc.

In the year 2000, the Intergovernmental Committee on IP & Genetic Resources,

Traditional Knowledge and Folklore (IGC) was established by members of
WIPO, in the year 2009. They decided to develop an International Legal
Instruments3which would give traditional knowledge, traditional and cultural
expressions, genetic resources some sort of effective protection. After patenting
turmeric, Neem & Basmati Rice a lot of countries around the world who possess
rich biodiversity realised the kind of threat traditional knowledge was going
through and the need to provide it some sort of effective protection.

Turmeric Patent

Turmeric, a very well-known herb, primarily grown in the eastern part of the
country. Its powder has been used for several purposes across the sub-continent
for example, as a medicine primarily to treat common cold (as an anti-parasitic)
and to cure skin infections, food ingredient, as a dye, as a blood purifier, etc. In
1995, the United States awarded to the University of Mississippi medical centre
patent on turmeric for its wound healing property. The subject matter claimed
was the use of ‘turmeric powder and its administration’, both oral and topical,
for wound treating. An exclusive right was granted to them to sell and
distribute. The Indian Council for Scientific and Industrial Research (CSIR)
objected to it and provided documented evidences of the prior art to the United
States Patent Organisation.4 It was a very well-known fact that the use of
turmeric for all those purposes has been prevalent in Indian households for ages,
but it was a very difficult task to provide and find published information on the
use of turmeric powder through oral as well as a topical route for wound healing
purposes. However, after extensive research, some thirty-two pieces of evidence
were found in different Indian Languages and were put forth substantiating the
argument and hence USPTO had to revoke the said patent and it agreed that the
use of turmeric for wound healing purposes is an old art and is quite prevalent
in India through centuries. Therefore, the Traditional Knowledge that belonged
to India was safeguarded in this case.

Neem Patent

The Request of granting a patent for Neem was first filed by W.R Grace and the
USA’s Agriculture Department in the European Patent Office5. The patent so
requested was for the ‘method of controlling fungi on plants comprising of
contracting the fungi with a Neem oil formulation.’ 6 It is a well-known fact that
claimed properties of neem has been used in India over centuries. India
therefore, filed a legal opposition against the grant of such patent, a New Delhi-
based Research Foundation did that in cooperation with the International
Federation of Organic Agriculture and Magda Aelvoet former green member of
the European Parliament. Neem is a tree which is legendary to India, and it
contains ‘several potent compounds for example the chemical found in its seeds
named azadirachtin, which is used as an astringent in many fields, its barks,
leaves, flowers have a variety of disease curing property, it helps cure leprosy,
diabetes, skin disorders, and ulcers.’ Neem twigs are used to form antiseptic
toothbrushes for ages.7There are plenty of evidence of ancient Indian ayurvedic
texts which have described and mentioned hydrophobic extracts of neem seeds
were known and used for centuries in India, in curing dermatological diseases in
humans and in protecting Agricultural Plants from fungi attack.8 The EPO thus
identified the lack of originality, novelty, inventive step and revoked the patent.
Apart from this, several US patents were recently taken out Neem-based
emulsions and solutions.

Basmati patent

The debate over patent of Basmati rice started after a patent was granted to
‘Rice Tec’ for a strain of Basmati Rice, aromatic rice grown in India & Pakistan
for ages. It is a well-known fact that ‘Rice is staple food of people in almost the
majority parts of the Asian Continent, especially in India & Pakistan. For
centuries the farmers in this region have nurtured, conserved and developed a
lot of distinct varieties of rice to suit different taste needs of people.’9 The ‘Rice
Tec’ filed a patent application the year 1997, it also acknowledged that the good
quality Basmati Rice is traditionally grown in India & Pakistan but it claimed
that it had invented some original and novel variety of Basmati Rice and grains
which makes the production of high quality, higher yielding Basmati Rice
possible worldwide. The Government of India thus pursued an appeal
challenging the claims regarding certain characteristics of Basmati (specifically
starch index, aroma and grain dimensions).

However, is to be noted that WTO Agreement does not require countries to

provide Patent protection to plant varieties, it only requires countries to legislate
so that plant variety are protected in some or the other manner not mandatorily
through patents.The United States was a strong proponent of Patent Protection
of plant varieties that allowed the application.‘Three strains development by
RiceTec are allowed patent protec tion and they are eligible to label its strain as
"Superior Basmati Rice".’ Therefore, in the Basmati case, the RiceTec altered
the strain through crossing with the Western strain of grain and successfully
claimed it as their invention and the case is an example of problems illustrated
in TRIPS with regards to patenting biotechnological processes.

Conclusion

Based on the above discussion we can fairly conclude that the Intellectual
Property world has recognized the importance of successful documentation of
indigenous Traditional Knowledge like India’s TKDL. It acts as the defensive
protection in the current Intellectual Protection system. The World Intellectual
Property Organisation (WIPO) has suggested it as a global measure to curb bio-
piracy and misappropriation of Traditional Knowledge.16 The inventions
developed using genetic resources could be patented by plant breeders’ rights.
WIPO considers defensive protection method of genetic resources associated
with Traditional Knowledge which doesn’t fulfil the requirement of novelty and
inventiveness.17The said measure further entails the possible disqualification of
patent applications that do not comply with Convention on Biological Diversity
(CBD) obligations on prior informed consent, mutually agreed terms, fair and
equitable benefit-sharing, and disclosure of origin. Secondly, WIPO members
want to make it mandatory for patent applications to show the source or origin
of genetic resources, as well as evidence of prior informed consent and a benefit
sharing agreement.