Patently Unfair: Third World Should Uphold Traditional Knowledge (2004)

THE LEADER ARTICLE: Patently Unfair: Third World Should Uphold Traditional Knowledge
 Rajesh Kochhar

 Times of India 27 Nov 2004
The Indian government’s success some years ago in the revocation of a 1995 patenton turmeric is significant not so much for what it accomplished as for what it drew attention to. The revoked patent in itself was particularly silly. Through it two expatriate Indian medical scientists working in an American university sought to project themselves as the discoverers of the time-tested wound-healing properties of turmeric. It is not clear what these worthies hoped to achieve. They could not possibly have made money out of their patent. They could not possibly have prevented an American from sprinkling turmeric powder on his wounds. Perhaps they thought the patent would look good on their curriculum vitae. 

When challenged, the two resorted to downright chicanery, trying to make a distinction between powder and paste, and use with and without honey. India was able to produce before the US patent office written proof ranging from modern scientific publications to ancient Ayurvedic texts which showed that the patent lacked novelty. London-based intellectual property specialist Graham Dutfield has pointed out that if India had argued that the “invention” was common knowledge in India, it would have lost the case. This is so because the US recognises undocumented public know-ledge as prior art only within its own territorial boundaries; foreign countries must bring written proof. Because of its ancient tradition, colonial rule and Indo-Europeanism, part of India’s traditional knowledge (TK) has been put down in writing. Much TK in India and the world at large remains undocumented. Ancient texts were not composed to withstand the scrutiny of modern patent attorneys. Bangalore-based legal expert Sangeeta Udgaonkar believes that it is merely a matter of time before clever attorneys devise ways of so wording patent applications as to bypass the available databases. 

Documentation of TK is certainly a good idea. It advances the cause of science and may prevent brazen misuse of TK. Yet it remains a defensive measure and is thus inadequate. Databasing whole world’s TK is such a gigantic task that it would require intellectual and financial resources of the advanced countries. And it is these very countries from which TK is sought to be protected! 

How do we define novelty? When the world was Euro-centric it was easy to do so: What Europe did not know before was new. In 1738, William Champion, “the first European to produce metallic zinc”, was granted a patent even though the process was known to have been brought from Asia. (It was invented in the Aravali Hills 2000 years ago.) However, 100 years previously, in 1608, Europe refused to grant a patent on telescope to Hans Lipperhey “on the ground that it is evident that several others have knowledge of the invention”. By the same logic, in today’s decentralised world, where the political agenda of science and techno-logy is not overtly supported by state, if knowledge is prevalent anywhere it should not be possible to patent it at all. 

It is noteworthy that in the last decade since the time of the revoked patent more than 200 turmeric patents have been granted to inventors from many countries, including India. None of these have been challenged. Most are unchallengeable, dealing as they do with medical and pharmaceutical properties of turmeric’s active ingredients. 

Today, hitherto marginalised traditional knowledge in vital areas of food and healthcare is being molecularised for incorporation into the broad stream of modern science. There is an urgent need to re-examine the concept of a non-obvious or an inventive step. If traditional knowledge provides the initial clue, mere use of sophisticated instrumentation to “unlock” the chemical secrets of plants should not constitute an invention

Today, Third World countries are as confused about their TK resources as the Indian political leaders were about their goals before the advent of Mahatma Gandhi on the Indian scene. The pre-Gandhi leadership could not decide whether it should challenge the colonial empire’s might and incur its wrath or jump on the imperial bandwagon for small favours. Gandhiji resolved the dilemma by squarely placing the colonial powers on the defensive on ethical grounds. In a similar manner Third World needs a joint ethical stand on TK. 

There are practical considerations to support this stand. Third World countries are inherently incapable of protecting their TK. They have become aware of its value only because of the scientific advancement in the West. TK does not recognise political boundaries. It should be viewed as a global heritage. If any organisation exploits TK commercially, it should pay royalty into a global fund meant for the welfare of world’s poor people. Patent laws the world over were enacted to protect local interests and deal with mechanical contraptions. They are grossly inadequate to meet the demands of globalisation and requirements of new biology. In 1738 what is now USA was earnestly appealing to England to grant recognition to Thomas Godfrey, the first- ever inventor of the sextant. Haughtily, London refused. The US has come a long way since. Now that the US has emerged as the solitary world power, its laws should also evolve. It must take the lead in amending its antiquated and parochial patent laws to truly reflect the spirit of a global world. Traditional knowledge of the world does not need individual fire-fighters, no matter how brave. It requires an ethical 
security ring. 

(The author is director, NISTADS.)

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