Samir K. Brahmachari*
TKDL
is a collaborative venture between Council of Scientific and Industrial
Research, Ministry of Science and Technology and Earth Sciences, and Department
of AYUSH, Ministry of Health and Family Welfare, and a maiden Indian effort to
prevent misappropriation of traditional knowledge belonging to India at
International Patent Offices. TKDL has overcome the language and format
barriers by scientifically converting and structuring the traditional medical
knowledge of Ayurveda, Unani, Siddha and Yoga in 34 million A4 size pages of
the ancient texts in languages such as Sanskrit, Hindi, Arabic, Persian, Urdu
and Tamil into five international languages, namely, English, Japanese, French,
German and Spanish, with the help of information technology tools and a novel
classification system - Traditional Knowledge Resource Classification (TKRC). Today, India through TKDL is capable
of protecting about 2.45 lakh medicinal formulations similar to those of neem
and turmeric. TKDL access
has been given to eight International Patent Offices which are European Patent Office
(EPO), Indian Patent Office, German Patent Office (GPO), United Kingdom
Intellectual Property Office (UKPTO), United States Patent & Trademark
Office (USPTO), Canadian Intellectual Property Office (CIPO), IP Australia and
Japan Patent Office (JPO) under Access (non-disclosure) agreement. Based on the third party observations submitted by the TKDL
team so far 53 patent applications of the pharma companies of United States,
Great Britain, Spain, Italy, China, etc. have been either set aside or
withdrawn/cancelled or declared as dead patent applications based on the
information present in the TKDL database at no cost and in few weeks time after
filing of the third party observations whereas cancellations of patents have
been known to take 4-13 years of legal battle. Considering the novelty, utility
and its effectiveness in preventing the grant of wrong patents several
countries and organizations have expressed their keenness in replicating the
TKDL model for their own countries. World Intellectual Property Organization
including the global community has recognized India’s leadership in the area of
Intellectual Property Rights and Traditional Knowledge.
Genesis
of TKDL Initiative
TKDL genesis dates back to the Indian
effort on revocation of patent on wound healing properties of turmeric
at the USPTO and anti-fungal properties of neem at EPO. Besides, in
2005, the TKDL expert group estimated that about 2000 wrong patents concerning
Indian systems of medicine were being granted every year at international
level, mainly due to the fact that India’s traditional medicinal knowledge
existed in languages such as Sanskrit, Hindi, Arabic, Persian, Urdu, Tamil,
etc. which was neither accessible nor comprehensible for patent examiners at
the international patent offices.
The grant of
these patents in United States and Europe were the cause of great national
distress, since, every Indian felt that the knowledge that belonged to India
was wrongfully taken away. Further, the patents would have conferred exclusive
rights on the use of technology to the applicant of the patent in the country
in which it was granted.
TKDL for Breaking Language and Access barriers on Traditional Knowledge
TKDL
has overcome the language and format barriers by scientifically converting and
structuring the available traditional medical knowledge in 34 million A4 size
pages of the ancient texts into five international languages, namely, English,
Japanese, French, German and Spanish, with the help of information technology
tools and a novel classification system - Traditional Knowledge Resource
Classification (TKRC). Today, India through TKDL is capable of protecting about
2.45 lakh medicinal formulations similar to those of neem and turmeric. On an
average, it takes five to seven years for opposing a granted patent at
international level which may cost Rs. 1-3 crore. One could only imagine the
cost of protecting 2.45 lakh medicinal formulations in the absence of TKDL.
Traditional
Knowledge Resource Classification- An innovative mechanism for structuring
Traditional Knowledge
For
classifying the Traditional Knowledge related subject matter under TKDL
Project, a classification system i.e. Traditional Knowledge Resource
Classification (TKRC) based on the structure of International Patent
Classification (IPC) was created by India which consists of approx. 27,000 sub
groups for Ayurveda, Unani, Siddha and Yoga. The objective of creation of TKRC
is not only to give a structured classification to Indian Traditional Medicine
but also to use it as an abstracting and retrieval tool.
Impact of TKRC on International
Patent Classification
TKDL has been responsible for the reform of
International Patent Classification (IPC) by enhancing the IPC on Traditional
Knowledge from one subgroup to 207 subgroups which enables effective search and
examination process on the patent applications related to traditional knowledge
subject matter. IPC reforms in the context of TK are fundamental reforms in the
International Patent System which would have long term implications.
TKDL breaks distance, format and
language barriers between TK holder(s) Knowledge and International Patent
Examiners
TKDL is a
proprietary and original database. TKDL is based on 148 books of Indian Systems
of Medicine, which are available at a cost of Rs. 50,000. These books are the prior art and can
be sourced by any individual/organisation at national/international level. TKDL acts as a bridge between these books and
international patent examiners. It is the TKDL technology which has created a
unique mechanism for a Sanskrit sloka to be read in languages like German,
Japanese, English, Spanish and French by an examiner at EPO or any other
International Patent Offices on his computer screen.
Access
to TKDL under TKDL (non-disclosure) Access Agreement
Access of TKDL to International Patent Offices is
available under TKDL Access (Non-disclosure) Agreement. Under the agreement,
examiners of patent office can utilise TKDL for search and examination purposes
only and can not reveal the contents of TKDL to any third party unless it is
necessary for the purposes of citation. TKDL Access Agreement is unique in
nature and has in-built safeguards on non-disclosure to protect India’s
interest against any possible misuse.
India has
signed TKDL Access Agreements with: (i) European Patent Office (Feb 2009) (ii)
United State Patent & Trademark Office (Nov 2009) (with the sideline of the
state visit of the Prime Minister to United States) (iii) Indian patent Office
(July 2009), (iv) Canadian Intellectual Property Office (Sep 2010) (v) German
Patent Office (Oct 2009) (vi) United Kingdom Patent Office (Feb 2010) (vii)
Intellectual Property Australia (Jan 2011) and (viii) Japan Patent Office
(April 2011).
TKDL search and retrieval capabilities for
protection of Traditional knowledge
TKDL is one such database that has
proven its efficacy and has succeeded in opposing hundreds of patent
applications at various International patent offices through the route of
filing of third party observations which exists in most of the National Patent
Laws of the countries, wherein a submission may be filed by any member of the
public on state of art / prior art at the patent office questioning the novelty
and non-obviousness of a patent application after the publication of the patent
application and before the grant of patent. Challenging the patents at
International Patent Offices is a long drawn process and is expensive. For example,
Mexico, only after more than 10 years of legal battle, was able to get the
patent on Enola bean at USPTO cancelled in July 2009. Similarly, cancellation on Monsonto
Soybean patent happened in July 2007 at EPO after 13 years of legal battle.
India is the only country in the world which has set up an institutional
mechanism (TKDL) to protect its Traditional Knowledge and is able to prevent
grant of wrong patents. TKDL enables cancellation / withdrawal of wrong patent
applications concerning India’s Traditional Knowledge at zero cost and in time
period of few weeks. In sharp contrast, in the absence of TKDL it took 10 years
(1995-2005) to get Neem patent invalidated for antifungal properties at EPO
Impact of TKDL against bio-piracy
Significant impact has already been
realised during the last two years.
Beginning July 2009, TKDL team has submitted 571 third party
observations out of which so far 53 patent applications of the pharma companies
of United States, Great Britain, Spain, Italy, China, etc. have been either set
aside or withdrawn/cancelled or declared as dead patent applications based on
the information present in the TKDL database.
TKDL: A model for other Countries
Considering the novelty, utility and
its effectiveness in preventing the grant of wrong patents several countries
and organizations such as South Africa, Mongolia, Thailand, Malaysia, ARIPO,
Nigeria, Indonesia, etc. have expressed their keenness in replicating the TKDL
model for their own countries. World Intellectual Property Organization
including the global community has recognized India’s leadership in the area of
Intellectual Property Rights and Traditional Knowledge. WIPO in collaboration
with CSIR organized an international conference on utilizing TKDL established
by India as a model for protection of traditional knowledge was held in New
Delhi in March 2011 where 35 countries rich in traditional knowledge
participated to understand the methodology for creation of TKDL and to apply
such model for protection of TK in their own country.
*Director
General, Council of Scientific and Industrial Research and Secretary,
Department of Scientific and Industrial Research
RTS
SS-132/SF-132/12.08.2011