THE LEADER ARTICLE: Patently Unfair: Third World Should Uphold Traditional Knowledge
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
(The author is director, NISTADS.)
The Hindu,16 December 2003
Towards a global perspective on globalisation
Director, National Institute of Science, Technology and Development Studies, New Delhi
GLOBALISATION IS a process of denationalisation of production and consumption; capital flow and services; as well as of laws and politics. What makes globalisation of singular importance is that it is taking place in a unipolar world and is being accompanied on the one hand by worldwide retreat of state and on the other by revolutionary breakthroughs in biotechnology (BT) and information and communication technology (ICT).
Globalisation must clearly be distinguished from internationalism which it seeks to replace. In the years immediately after the Second World War, the concept of nationhood was considered sacrosanct. Internationalism recognised and respected national boundaries, identities, aspirations and priorities. It sought to build bridges among nations, and in doing so went out of the way to discover, even invent, commonalities. In contrast, globalisation seeks to devalue national boundaries and dilute sovereignties.
A psychological dimension needs to be noticed. Globalisation introduces homogenisation in such superficial areas as entertainment, food, dress and even slang, but deeper down accentuates differences between “us” and “them.” If the intensity of nationalism was being tempered with internationalism, globalisation is being countervailed by a rise in sub-nationalisms.
Right from the taming of fire through advent of agriculture, invention of wheel, development of non-muscular source of power to man on the moon, human beings have been arranging and rearranging building blocks provided by nature. Now, it has become possible to modify these building blocks themselves, at molecular level. The first industrial revolution dealt with physics and chemistry and went hand in hand with colonialism. The second industrial revolution deals with biology and is proceeding in conjunction with globalisation. The first industrial revolution would still have come even if colonialism had not taken place; but colonialism increased the pace and profitability of Europe’s industrialisation. Similarly, biotech revolution would still have come; but globalisation is being used to make it more uneven and selectively profitable.
Rising and flat technologies
At this stage it will be useful to distinguish between flat and rising technologies. A rising tech is one which is currently in a rapid phase of development. A flat tech, on the other hand, is one which has more-or-less been standardised. Quite obviously, in course of time a rising tech will become flat. The U.S. has tended to drive its economy through rising techs, at the same time parcelling out production based on flat techs to lesser countries. These countries in turn tend to keep the higher end of the flat tech to themselves and parcel out the lower end to countries down the line.
Whereas the (first) industrial revolution was an entirely self-contained European enterprise, the biotech revolution needs the third world with its stock of biodiversity and store of traditional knowledge on healthcare and food. How does the third world respond to this situation? Unfortunately, the third world countries are a confused lot, just as Indian nationalists were till Mahatma Gandhi came on the scene. The pre-Gandhi Indian leadership could not decide whether it should challenge the Empire’s might and incur its wrath or appeal to its sense of noblesse oblige and ask for small favours. Gandhiji resolved the dilemma by squarely placing the colonial powers on the defensive on ethical grounds and for all times to come.
Colonialism in its day was furnished with an ideology no matter how abominable it may look now. In contrast, globalisation, notwithstanding its broad sweep and power, is bereft of any serious theoretical underpinning. There is no philosophical basis for it beyond current economic interests. Enforcement of globalisation seems to be its only legitimation. The foremost task today is developing a cross-cultural civilisational perspective on those aspects of globalisation that deal with food and healthcare and which consequently are literally matters of life and death for many countries. In particular, questions pertaining to intellectual property rights associated with traditional knowledge should not be addressed by individual countries in a knee-jerk fashion. Rather, attempts should be made to develop a global ethical framework which should be binding on all major players.
When patent laws at international level were first introduced, they dealt with tangible things, applied to a small part of the world, and had the benefit of actual practice over four centuries at local levels. In contrast, intellectual property laws pertaining to biotechnology and impinging on such civilisationally basic areas as food and health are being framed at the outset itself, when there is neither any ethical framework to interpret them nor benefit of actual practice to fall back upon.
Today when we talk of globally applicable laws, no national laws can serve as a role model. This is so because so far laws have been made to safeguard national or local interests. Global laws require fresh thinking. When the world was Euro-centric, it was easy to define what was new. If Europe did not know of it, it did not exist before. In 1738 William Champion was granted a patent in his capacity as “the first European to produce metallic zinc,” even though the process was known to have been brought from Asia. However, 100 years previously, in 1608, when Hans Lipperhey applied for a patent on telescope, he was turned down “on the ground that it is evident that several others have knowledge of the invention.” By the same logic, if the knowledge is available anywhere in the world today, it should not be possible to patent it.
The onus of protecting traditional knowledge should not rest on individual countries. (Much of it transcends current political boundaries). Traditional knowledge in its entirety should be treated as common heritage of humankind. If it is incorporated into modern scientific mainstream with a view to deriving commercial benefit, then royalty should be paid into a global fund specially created for the purpose. This fund in turn should be used for the good of the repositories of traditional knowledge.
© Copyright 2000 – 2003 The Hindu