|
By Devinder Sharma The proposed digital library will offer thousands of pages of traditional Indian knowledge on a platter. But it will also enable private companies to manipulate what is already known and project it as an invention or a novelty
 There is excitement in the air. India's proposal for setting up a Traditional Knowledge Digital Library (TKDL) has been selected for a pilot study in 170 countries. Even before the ink has dried, the digital library is being hailed as the answer to the ever-growing threat of biopiracy of traditional knowledge and folklore.
The digital library of traditional knowledge will have some 35,000 slokas or verses drawn from the available literature on one of the Indian systems of medicine, Ayurveda. It will, in addition, have 1,40,000 pages of information which will be easy to retrieve. These CD roms will be made available to each of the patent offices worldwide with the hope and expectation that patent applications will be matched with the details provided so as to ensure that no patent is granted on something that was traditionally known. On the face of it, the digital library would seem like a wonderful weapon against biopiracy. After all, public outcry and outrage against some of the better-known cases of biopiracy or theft of traditional knowledge -- neem, turmeric, brinjal, ayahuasca and quinoa -- could have been avoided if those who granted these patents had known that the medicinal or insecticidal properties of these plants were widely known among traditional communities in developing countries. In technical parlance, these patents were based on 'prior art'. It is, however, not as simple as all that. In a world where profit and greed have become the new economic mantras, private companies will go to any extent to manipulate what is already known to project it as an invention or a novelty. Any tinkering with the original medicinal remedy with a little cosmetic covering can be easily presented as a new and novel product. It has happened in the past. For every successful revocation of a patent, whether it is neem, turmeric or ayahuasca, there are at least a thousand others that simply go unnoticed. The TKDL task force itself was astounded to learn that of the 4,896 references on 90 medicinal plants in the United States Patent and Trademark Office (USPTO) database, 80 per cent of the references pertained to just seven medicinal plants of Indian origin. In other words, nearly 4,000 patents or patent applications are based on the medicinal properties of plants that are already known. The task force studied the patents and, interestingly, found that 360 of the 762 patents on medicinal plants that were granted by the USPTO could be easily categorised as `traditional'. So, once the digital library is in place, will the USPTO strike down these faulty patents? The answer is no. Will the USPTO ensure that in future no such patents are granted? The answer, again, is no. After all, what is available in the Ayurveda verses is not scientific decoded language on the medicinal properties of the native plants. What is presented before the patent offices, on the other hand, is so mired in technical detail and legal complexities that it is difficult to easily decipher. There are patent applications pending before the USPTO, for instance, which run into 1,000 pages. It has already been said that a complete examination of this patent application alone will not be complete before the year 2035! Take the case of a patent granted on the ailment 'dry eyes'. In the Indian literature, `dry eyes' control has been spelled out through the use of leaves of the kumari plant (aloe vera). The remedy is to take a few aloe vera leaves, wash them in clean water and then crush the leaves. Put a few drops of the solution that is extracted from the leaves into the eyes and the 'dry eyes' problem is taken care of. In the patent application that has been granted by the USPTO, the only difference is that `clean water' has been replaced with `chlorinated water'. And, of course, there is enough technical jargon such as temperature, etc, to make it look as if it were a novel product. The proposed digital library will, therefore, only be helping companies scout for commercial uses for the medicinal and therapeutic properties available in the database. Minor tinkering or value-addition will qualify it for the grant of a patent. Then too, how will the infringement be checked is something that has been very easily left to interpretation. Even in a country where patents and theft of intellectual property rights have become an emotive issue, it has been difficult to fight the piracy of traditionally-known products like basmati rice. The ministry of commerce has, in fact, issued a circular saying that it has no money to take the basmati battle any further. If the government has no money and no political will to challenge and fight the patent on basmati rice, which is a culturally and politically sensitive issue, it is futile to expect any meaningful challenges to other cases of biopiracy. To challenge and fight patent infringements is simply prohibitive. In the case of basmati rice, the challenge came only from India although the scented rice is also grown in neighbouring Pakistan. Despite first making claims that it too will join the battle against basmati rice patenting, Pakistan chickened out when the cost of the legal battle was worked out to something around US $ 3,00,000. Let alone developing countries, even rich industrialised countries find it difficult to fight legal patent battles in the US courts. A British company BTG, for instance, had filed a case for patent infringement over the use of hovercrafts by the Pentagon. BTG won and the Pentagon was forced to fork out US $ six million in penalties. But the lesser-known fact is that BTG spent a whopping US $ 2 million in lawyers' fees. Even adequate protection and safeguards, as spelled out under the National Biodiversity Act, and in the Patent (Second Amendment) Bill 1999, do not guarantee that such patents will not be drawn abroad. In India, the grounds for rejection of a patent application as well as revocation of a patent include non-disclosure or wrongful disclosure of the source of origin of biological resource or knowledge in the patent application, and anticipation of knowledge, oral or otherwise. It has also been made necessary for patent applicants to disclose the source of origin of the biological material. Other provisions include anticipation of invention by available local knowledge, including oral knowledge, as one of the grounds for opposition, as also for the revocation of patents, if granted. In the absence of any global safeguards, the digital library will become a much-sought-after source of information for private companies. If such digital libraries are constructed all over the world, private companies will surely be laughing all the way to the bank. And if you are wondering why the World Intellectual Property Organisation (WIPO) and UNCTAD are showing so much interest in creating the database on traditional knowledge, the answer is obvious. Both these organisations are desperately pushing for a system that legalises monopoly control over what was traditionally known. Documentation of traditional knowledge has therefore to be seen in the national interest before any move is made to make community knowledge accessible globally. To say that such initiatives will come with benefit sharing is to duck the real and sensitive issues linked to theft and misappropriation. Perhaps this can best be done by stopping the documentation process and the subsequent creation of the digital database. Surely we can stall this documentation of traditional knowledge till effective safeguards are put in place? The only other plausible approach is to do what the Chinese have done. Between 1992 and 2000, China revised its patent laws twice to ensure intellectual property control over its unique system of medicine. China has drawn a total of 12,000 patents on the medicine system and therefore does not have to worry about constructing a digital library.
|
