South Asia Regional Development Gateway

Chairman and CEO, South Asia

Other Affiliations: NEF Law College. Guwahati (India), Law

Thesis Title: The Conflict Between Intellectual Property Rights and Protection of Traditional Knowledge: A Case Study of India’s Fight Against Turmeric, Basmati Rice and Neem Patents

About

Knowledge is power in today’s information society and intellectual property rights (IPR) attain a significant role in the economics of this society. It is usually presumed that the prevailing international concepts of IPR laws do not help indigenous communities in safeguarding their traditional knowledge. The basic research questions are: a. Can companies obtain patents based on indigenous knowledge? If they do, how does the indigenous community seek protection of its traditional knowledge under contemporary intellectual property rights laws?, and b. Are patents useful to local communities?  Can indigenous knowledge be protected through patents and other IPR provisions?

Intellectual Property Rights (IPR) values the innovative mind and individual proprietary right over a new product. Traditional Knowledge (TK), on the other hand, values social ownership of that knowledge resource. Plants and genetic resources are considered as “a common heritage” of mankind that is to be preserved, freely available for use, and ultimately benefit the present and future generations. 

The IPR laws across the world have been criticised as too close to the American patent system that emphasises protection of innovation whereby companies can show some ‘inventive steps’ in a product or process to get patent protection on items that originates from TK. In showing this innovation, the companies often ignore ‘prior art’ that exists elsewhere. Even documented TK is not recognised if not available in a tangible form of a publication. Indian victory in the Turmeric and Basmati patent re-examination cases in USPTO and the Neem case at the EPO encourages others to challenge unfair patents on TK-based products. Patents, however, if successfully obtained for the TK, might prove useful and financially beneficial to the communities. 

The conflict between IPR and TK is thus inherent in the nature of TK as a collective wealth of the communities as against the individual ownership of a product or a process based on such common knowledge. Another major inherent conflict between IPR regimes and TK lies in the monetary constraints as IPR protection that comes at a premium and too recurring every year. The conflict between IPR and TK has also brought to light the ways that are being adopted by countries like India not only to protect its own TK through national IPR systems, but also to put in place vigilance mechanisms against misappropriation of its TK by unscrupulous patentees. Moreover, other IPR mechanisms like trade secrets, geographical indications, trade marks, or sui generis rights of indigenous people can also come to the rescue of TK. Time has come to tread a collaborative middle ground whereby technological advances of the north and centuries of TK of the south join hand together in the broader interest of the human race on this earth.