JERUSALEM COLLEGE OF ENGINEERING

JNC1361 ESSENCE OF INDIAN TRADITIONAL KNOWLEDGE

UNIT IV
TRADITIONAL KNOWLEDGE AND INTELLECTUAL PROPERTY

Systems of traditional knowledge protection, Legal concepts for the

protection of traditional knowledge, Certain non IPR mechanisms of
traditional knowledge protection, Patents and traditional knowledge,
Strategies to increase protection of traditional knowledge, global legal
FORA for increasing protection of Indian Traditional Knowledge.

TRADITIONAL KNOWLEDGE
While there is not yet an accepted definition of TK at the international level, it can be said
that: TK in a general sense embraces the content of knowledge itself as well as traditional
cultural expressions, including distinctive signs and symbols associated with TK.

When community members innovate within the traditional knowledge framework, they may
use the patent system to protect their innovations. However, traditional knowledge as such -
knowledge that has ancient roots and is often informal and oral - is not protected by
conventional intellectual property systems. This has prompted some countries to develop
their own sui generis (specific, special) systems for protecting traditional knowledge.

Traditional knowledge is not so-called because of its antiquity. It is a living body of

knowledge that is developed, sustained and passed on from generation to generation within a
community, often forming part of its cultural or spiritual identity. As such, it is not easily
protected by the current intellectual property system, which typically grants protection for a
limited period to inventions and original works by named individuals or companies. Its living
nature also means that “traditional” knowledge is not easy to define.

Some examples of traditional knowledge are:

 Use of plao-noi by the Thai traditional healers to treat ulcers.
 Use of the Ayahuasca vine by Western Amazonian tribes to prepare various
medicines.
 Use of hoodia cactus by the San people to stave off hunger while outhunting.

Why We Should Protect Traditional Knowledge

Traditional knowledge holders face various difficulties. In some cases, the very survival of
the knowledge is at stake, as the cultural survival of communities is under threat. External
social and environmental pressures, migration, the encroachment of modern lifestyles and the
disruption of traditional ways of life can all weaken the traditional means of maintaining or

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passing knowledge on to future generations. There may be a risk of losing the very language
that gives the primary voice to a knowledge tradition and the spiritual world-view that
sustains this tradition. Either through acculturation or diffusion, many traditional practices
and associated beliefs and knowledge have been irretrievably lost. Thus, a primary need is to
preserve the knowledge that is held by elders and communities throughout the world. Another
difficulty facing traditional knowledge holders is the lack of respect and appreciation for such
knowledge. The need to protect traditional knowledge has increased with changing time,
especially in order to stop unauthorized and commercial misuse of such knowledge. It is
important to protect the indigenous people from such loss and also help them to preserve such
ancient practices.
The primary arguments for granting protection to TK include:
1. Equity
The prime concept for the protection of TK is based on equity. TK generates value that is not
adequately recognized and compensated due to the currently erroneous system of funding and
reward. The protection of TK, therefore, assumes significance to bring equity to primarily
unjust and unequal relations.
2. Conservation
Another prime factor for the protection of TK is the importance of such knowledge for
conservation. Maintenance of biological diversity in farming generates value for the global
community. IPRs could be used to generate income to sustain the otherwise abandoned
activities. Under this approach, the protection of TK helps fulfill society’s macro objectives
for the conservation of environment, sustainable agriculture and food security.
3. Preservation of Traditional Practices & Culture
The protection of TK is a framework that encourages the maintenance of traditional practices,
culture and knowledge. In this sense, the concept of ‘protection’ is quite different from the
concept applied under IPRs. The preservation of TK is not only a key element of the right to
self-identification and a pre-requisite for the continuous existence of traditional people and
indigenous communities, but also a vital element of the cultural heritage of humanity. The
crisis impacting the world’s diverse cultures and languages is much deeper than the
biodiversity crisis. About 90% of the 6000-odd languages currently spoken – and their
corresponding cultures – may face extinction in the next century.
4. Promotion of Use of TK & Its Significance in Development
The promotion of the use of TK is a vital objective. Article 8 (j) of the CBD requires the
promotion of ‘wider application’ of TK. Protecting TK against loss and misuse, or ensuring
compensation to TK-holders are pre-requisites to boost the wider use of such knowledge.
Protection may serve as an instrument for facilitating access to TK. Protection of some kind
may create the basis for trust required for the LICs to share their knowledge and enhance
their position to extract value from it. If certain rights are recognized, knowledge-holders will
be more willing and prepared to provide access to their knowledge. Besides, compensating
them adequately will encourage them to have more incentives to conserve it for future access.
Promoting the development of TK may also be a prime motivation behind protecting TK
from extinction and loss.

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How We Can Protect Traditional Knowledge?
Traditional knowledge should be afforded effective protection especially in developing and
underdeveloped countries. Such protection should primarily be with regards to, firstly, the
recognition of the rights of the original traditional knowledge holders and secondly, the
unauthorized acquisition of rights by third parties over traditional knowledge. Due to the
prevailing trends of globalization a great degree of international coordination and cooperation
is necessary to effectively protect and develop traditional knowledge and any such protective
strategy needs to consider the community, national, regional and international dimensions.
Further the mechanisms sought to be implemented with regards to traditional knowledge
must give subjective consideration to the original holders of the knowledge. Economic
aspects of development need to be addressed by such mechanisms. Most importantly such
protection should be affordable, understandable and accessible to traditional knowledge
holders.

The following actions could be taken to ensure the effective protection of traditional
knowledge:
 National and international enforcement mechanisms in the intellectual property
system that ensure legal access to genetic resources and traditional knowledge should
be fully developed and used.
 Political and legal flexibility in the existing international arrangements and
negotiations to design and implement positive and defensive systems to protect
traditional knowledge should be maintained and enhanced.
 Broad and effective participation of indigenous and other local communities in all
discussions and negotiations on genetic resources and traditional knowledge.

SYSTEMS OF TRADITIONAL KNOWLEDGE PROTECTION

There are two forms of intellectual property related protection systems with regards to
traditional knowledge. They are: Positive protection, Defensive protection.
Positive protection: Giving traditional knowledge holders the right to take action or seek
remedies against any misuse of traditional knowledge. Any system of positive protection of
traditional knowledge must provide for:
 Recognition of value and promotion of respect for traditional knowledge systems.
 Responsiveness to the actual needs of traditional knowledge holders.
 Repression of misappropriation of traditional knowledge and other unfair and
inequitable uses.
 Protection of tradition based creativity and innovation.
 Support of traditional knowledge systems and empowerment of traditional knowledge
holders.
 Promotion of equitable benefit sharing from use of traditional knowledge.
 Promotion of the use of traditional knowledge for a bottom up approach to
development.

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Defensive protection: Safeguarding against illegitimate intellectual property rights acquired
by third parties over traditional knowledge. Any system of defensive protection of traditional
knowledge must provide for:
 The criteria defining relevant prior art apply to the traditional knowledge.
 A mechanism to ensure that the traditional knowledge constituting prior art is
available and accessible to search authorities.
 It is suggested that these two approaches should be undertaken in a complementary
way as a comprehensive approach to protection of traditional knowledge is unlikely to
rely totally on any one form.

LEGAL CONCEPTS FOR THE PROTECTION OF TRADITIONAL KNOWLEDGE

Unlike other categories of intellectual property rights, India has no substantive act or law to
protect TK. Other IP acts contain provisions with respect to TK such as the Patents Act 1970.
Copyright protection in for a limited time period and also demands certain criteria to be
fulfilled, therefore under this IP as well protection of traditional knowledge doesn't have
much scope.

Patent Act, 1970

It provides opposition/ revocation mechanisms to make sure that undeserving Patents are not
granted in contravention of the provisions of the Act and if they are granted, they can be
opposed/ revoked.

Certain other legal concepts

Certain other legal concepts for traditional knowledge protection are:
 Prior Informed Consent: As per this principle traditional knowledge holders should
be fully consulted before third parties use their knowledge.
 Equitable Benefit Sharing: This principle prescribes the balancing of the interests of
the right holders and the general public.
 Unfair Competition: Unfair competition means any act of competition contrary to
honest practices in industrial or commercial matters and includes various acts that
mislead the public or cause confusion. This principle allows for action to be taken
against false or misleading claims that a product is authentically indigenous, or has
been produced or endorsed by, or otherwise associated with, a particular traditional
community.
 Patents: When practitioners innovate within the traditional framework, they can use
the patent system to protect their innovations.
 Distinctive signs: Such signs include trademarks, collective marks, certification
marks and geographical indications. Traditional signs, symbols and terms associated
with traditional knowledge may be protected as distinctive marks.
 Customary laws: Customary laws, protocols and practices are the ones which define
how traditional communities develop, hold and transmit traditional knowledge.

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CERTAIN NON-IPR MECHANISMS OF TRADITIONAL KNOWLEDGE
PROTECTION
Traditional knowledge has been protected by certain mechanisms which are beyond the
domain of intellectual property.
 Environmental: Concluded in 1994, the UN Convention to Combat Desertification
provided for the protection of traditional knowledge in the ecological environments as
well as the sharing of benefits arising from any commercial utilization of this TK.
 Health: The World Health Organization (WHO) has recognized the relevance of
traditional knowledge in the field of medicine as a source of primary health care in the
Primary Health Care Declaration of Alma Ata. Its involvement in TK relates to its
work on traditional medicine. The WHO objective as set out in its constitution is the
attainment by all people of the highest level of health, as the economic and trade value
of TK, particularly the knowledge of traditional medicine and medicinal plants, in
becoming increasingly recognized, more and more WHO member states have become
concerned with the need to protect it.
 Trade and Development: The Doha Declaration adopted by the World Trade
Organization in the Doha Ministerial Conference, in 2001, instructed the TRIPS
Council to examine issues regarding the protection of traditional knowledge.
In 2001 World Trade organisation WTO members adopted a special ministerial
declaration at the WTO ministrial conference in Doha to clarify ambiguities between
the need for governments to apply the principles of Public Health and the terms of the
agreement on Trade-Related aspects of Intellectual property rights (TRIPS)
In particular concerns had been growing that patent rules night restrict access to
affordable medicines for public population in developing countries in their efforts to
control diseases of Public Health importance, including HIV, tuberculosis and malaria
 Food and Agriculture: In the recent years the biggest development was International
Treaty on Plants Genetic Resources for Food and Agriculture popularly (ITPGRA)
known as International Seed Treaty.
The International Treaty on Plant Genetic Resources for Food and Agriculture
provides for the recognition of farmers rights and the protection of traditional
knowledge relevant to plant genetic resources for food and agriculture.
Food and Agriculture Organisation (FOA) has wide range of activities relating to
access to genetic resources, their sustainable use, promotion and protection of
traditional knowledge activities in the Forest Department, including the programs on
non-wood forest products.
The Treaty organises the right of the farmers and local communities, who have been
in the centre of origin and diversity in conserving, improving and making available
these resources. The Treaty also emphasizes the need to protect TK relevant to plant
genetic resources for Food and Agriculture.
 Biodiversity: Convention of biological diversity (CBD) was concluded on 5 June
1992. The CBD establishes principles for the protection of the environment, while
ensuring ongoing economic development, emphasizing conversation of biodiversity,
sustainable use and fair and equitable benefit sharing of the use of genetic resources.

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 The CBD also recognises the importance of traditional use of genetic resources in the
sustainable preservation of biological diversity. Similarly, it also incorporates
provisions which provide for the encouragement, development of exchange and use of
indigenous and traditional knowledge and Technology in the spirit of CBD.

PATENTS AND TRADITIONAL KNOWLEDGE

A little publicized fact about India is that there are around 100 million forest dwellers
in India, most of whom belong to tribal communities. The forests provide them with
sustenance, providing both timber and nontimber forest produce. In turn, the forest dwellers
have over the centuries gathered knowledge from the natural environment around their
community.
This community has in one sense been thankfully insulated from the ways of modern
man and has carried on the traditions of their ancestors. As a whole, the forests and its
dwellers gives to India an abundant knowledge about the traditional value of various forest
products. The way intellectual property rights have been designed in modern commerce,
traditional knowledge cannot be protected. For instance, traditional knowledge cannot be
patented because such knowledge lacks inventive character, because of the inherent lack of
novelty.
Traditional knowledge is also often held collectively by communities, rather than by
individual owners. This traditional knowledge is information that is transmitted from
generation to generation generally within the community or within families within the
community in an oral form without any adequate documentation. This has caused traditional
knowledge to be undervalued and marginalized. In fact, one of the fears in these communities
is that if the knowledge were to be documented it would have been lost to the community by
expropriation.
In India, the Forest Act itself acknowledges this fact and provides a framework for
documentation of such knowledge and the nature of evidence required for recognition of the
rights of these communities in the intellectual property in respect of such knowledge. The
provisions of the Biological Diversity Act and Forest Rights Act of 2006 both provide a
shield for tribal traditional knowledge, by, one the one hand, respecting and protecting the
knowledge of the local communities related to biodiversity and on the other, declaring that
the intellectual property rights, in such knowledge belongs primarily to members of the
community collectively.
In broad terms, patents can be defined as exclusive rights granted for an invention -
either a product or a process - that offers a new technical solution to a specific problem. A
patent implies the grant of a ―monopolyǁ to an inventor who has used his knowledge and
skills to produce a product or process which is new, involves an inventive step and is capable
of industrial application.
The TRIPS Agreement also has some provisions having limited application to the
protection of Traditional Knowledge. The obligation to protect geographical indications can
be used to protect traditional knowledge if associated with the indication used for production
and sale of goods. It is made clear that a given quality, reputation or other characteristics of
the goods essentially attributable to its geographical origin are to be considered in identifying

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the geographical indications for protection. Thus it may be possible for protection through
geographical indication the traditional knowledge associated with goods.
Disclosing traditional knowledge which forms part of an invention and of the state of
the art or prior art will promote the progress of science by creating an incentive for the
maintenance of traditional knowledge systems . This will happen by traditional knowledge
being widely and universally accepted within “western” or “modernǁ innovation protection
systems and becoming a reference point within the regular operations of the international
patent system.
In the recent past, there have been several cases of bio-piracy of TK from India. First
it was the patent on wound-healing properties of haldi (turmeric); now patents have been
obtained in other countries on hypoglycaemic properties of karela (bitter gourd), brinjal, etc.
An important criticism in this context relates to foreigners obtaining patents based on Indian
biological materials without acknowledging the source of their Knowledge or sharing the
benefits.
There is also the view that the TRIPS Agreement is aiding the exploitation of
biodiversity by privatizing biodiversity expressed in life forms and knowledge
A. Neem: A tree legendary to India has been used as a biopesticide and medicine in India for
century‘s.. Ancient Indian Ayurvedic texts have described the Neem tree and it‘s medicinal
healing properties as far back as 5000BC The Europion patent office (EPO) revoke in its
entirety patent number 436257 which had been granted to the united state of American and
the multinational corporation W.R. Grace for a fungicide derived from seed of the Neem tree.
Despite Neem‘s ancient tradition, over 12 US patents were recently taken out Neem-based
emulsions and solutions.
B. Turmeric In 1993, the US PTO granted the University of Mississippi Medical Center
patent rights over a ―healing a wound by administering turmeric to a patient afflicted with a
wound.ǁ But again, Turmeric has been used for centuries in India. Indians grow up with a
constant awareness of turmeric the tuber when dried keeps practically forever. The patent was
eventually cancelled in 1998 after reexamination proceedings. But revealed to India and to
indigenous societies around the world, again, how easy it was to falsely patent centuries-old
traditional knowledge.
C. Basmati Rice In 1997, the US patent office granted a patent in September 1997 to ‗Rice
Tec‘ for a strain of Basmati rice, an aromatic rice grown in India and Pakistan for centuries.
This case has not yet been resolved, but the Indian Government is actively pursuing the case,
stating that it violates both TRIPS and the CBD. According the „South Asia Commission on
Economic and Social Policy, Rice Tec‟s patent also violated the CBD in not recognizing the
sovereign rights of India and Pakistan over Basmati rice. In basmati case demonstrates the
problem as illustrated in TRIPS that patents are granted to biotechnological processes. Thus,
even though basmati rice has been in South Asia for centuries, Rice Tec just altered it slightly
through crossing with a Western strain of grain, and successfully claimed it was its own.
D. Maca In 2001 after the Viagra craze, two US companies patented extracts of the Andean
plant, ―Macaǁ which has traditionally been used to enhance fertility and sexual function. The
patents were granted on the basis of ―unlocking maca‘s chemical secretsǁ through advanced
processes. .It has become clear, though narrating these few cases that IP laws cannot or are
not being effectively applied to prevent the biopiracy of traditional knowledge. Traditional

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knowledge is being treated as a free input into research and commercial product
development. When patents are falsely granted, equitable benefit sharing is not taking place
either, while indigenous peoples remain subject to biopiracy and become ever more
marginalized in the process.

STRATEGIES TO INCREASE PROTECTION OF TRADITIONAL KNOWLEDGE

International Efforts:
Indian Traditional Knowledge available to the USPTO – Patent examiners of the United
States Patent and Trademark Office (USPTO) are now able to access the Database of
Traditional Knowledge thanks to the Indian Government according its permission in
November 2009. India‘s Council of Scientific and Industrial Research, and the Department of
Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy was credited with the
development of the Traditional Knowledge Digital Library (TKDL), which is a 30 million
page searchable database of traditional knowledge translated from numerous languages such
as Hindi, Sanskrit, Arabic, Persian, Urdu and Tamil into English, Japanese, French, German
and Spanish. The EPO was allowed the use of the TKDL in February 2009.

 MOU between USPTO and India on Bilateral Intellectual Property Rights

Cooperation –
The Indian Department of Industrial Policy and Promotion (DIPP) and USPTO announced on
the 23rd of November 2009 that they have entered into a MOU on comprehensive bilateral
cooperation for IPR protection and enforcement. Under the terms of the MOU, the USPTO
and DIPP will cooperate on a range of IPR issues, focusing on capacity building, human
resource development, and raising public awareness of the importance of [Link] of the
DIPP, Mr. Ajay Shankar said: ―Our vision is to transform our IP system into a world class
organization by adopting transparent, automated and user-friendly procedures. The MOU that
we are signing today would help strengthen our capacity to achieve this objective.ǁ There are
several other international legal platforms and instruments that currently address intellectual
property protection as it relates to traditional knowledge.

 The UN Draft Declaration on Rights of Indigenous People

This UN Draft Declaration, in Article 29, specifically states that ―Indigenous people are
entitled to the recognition of the full ownership, control and protection of their cultural and
intellectual property. They have the right to special measures to control, develop and protect
their sciences, technologies and cultural manifestations, including human and other genetic
resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions,
literatures, designs and visual and performing arts.

Global Guidelines: A recent positive initiative is the drafting of a set of corporate guidelines
for businesses that want to use native plants and traditional knowledge from indigenous
communities to make commercial drugs. In April 2002 in The Hague, delegates of the UN
Biodiversity Congress from 166 countries negotiated and adopted global guidelines during a
two- week long U.N. sponsored CBD conference that was designed to encourage

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pharmaceutical companies to make responsible agreements with countries whose resources
they use

Regional Initiatives: The Cancun Declaration & Cusco Declaration on Access to Genetic
Resources. Traditional Knowledge and Intellectual Property Rights: In February 2002,
Environmental Ministers from 12 countries met in Cancun, Mexico met to discuss issues
related to biodiversity in their countries, identifying a need to establish terms governing the
granting of patents. At the WSSD in Johannesburg this past August, their group was
established as a permanent negotiating body to address these issues.
It has also been suggested that a requirement on patent applications to disclose in their
applications any traditional knowledge used in the invention in question could help in the
assessment of novelty and also assist countries with possible claims to examine the
application and oppose the patent in time.
The Geographical Indication of Goods (Registration and Protection) Act, 1999 passed
by Parliament is another step taken by India. The Act primarily intends to protect the valuable
geographical indications of our country. The protection under the Act is available only to the
geographical indication registered under the Act and to the authorized users. The Act permits
any association of persons or producers or any organization or authority established by law
representing the interest of the producers of goods to register a geographical indication. It
may be possible to argue that the holders of the traditional knowledge in goods produced and
sold using geographical indication can register and protect their traditional knowledge under
this law.

Consequences of efforts: Time lines for patent processing has been considerably [Link]
has been made possible to obtain a patent in 8 months as opposed to 6-8 [Link] of
over 44,000 patent applications have been liquidated in approximately three years.

Concerns: Patent infringements – no injunctive relief granted, Pharmaceutical patents –

external pressures, No specialised courts, Trials are delayed, No culture of damages Actual
costs

GLOBAL LEGAL FORA FOR INCREASING PROTECTION OF INDIAN

TRADITIONAL KNOWLEDGE
Indian TK is now available to the United States Patent and Trademark Office
(USPTO) and European Patent Office (EPO), who can access the database of TK, courtesy
the Indian Government’s permission. India’s Council of Scientific and Industrial Research
(CSIR), and the Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and
Homeopathy developed the TK Digital Library (TKDL), a 30-million page searchable
database of TK translated from several languages such as Hindi, Sanskrit, Arabic, Persian,
Urdu and Tamil into English, Japanese, French, German and Spanish.
 The UN Draft Declaration on Rights of Indigenous Peoples (UNDRIP): Article 29 of
this UN Draft Declaration specifically states that people from LICs are authorized to
the recognition of the complete ownership, control and protection of their cultural and
IP. They have the special rights to control, develop and protect their sciences,

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 technologies and cultural expressions, including human and other genetic resources,
seeds, medicines, wisdom of the characteristics of flora and fauna, oral traditions,
literature, designs and, visual and performing arts.
 Global Guidelines: Another positive initiative is the inclusion of a set of draft
corporate guidelines for businesses that want to use native plants and TK from LICs
to make commercial drugs.
The CBD and the 2010 Nagoya Protocol establish the dominant international system
for the recognition and protection of TK. Under Article 8(j) of the CBD, parties are required
to respect and maintain knowledge held by LICs, and promote broader application of TK
based on fair and equitable benefit-sharing. TK is further recognized in Article 16 as a ‘key
technology’ for effective practices of conservation and sustainable use of biodiversity, with
procedural requirements established in Article 15(4–5) for access to genetic resources,
including those based on prior informed consent and mutually agreed terms. The Nagoya
Protocol, which became effective from 2014, broadens the CBD provisions establishing a
concrete system determining access and benefit-sharing. Other relevant developments
relating to TK that evolved simultaneously to progress in the CBD leading up to the Protocol
include the establishment of:
 The International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA) passed by the Food and Agriculture Organization Conference in 2001,
effective from June 29, 2004. This treaty provides for protections relating to ‘farmers’
rights’ including TK and traditional breeding practices.
 The Inter-Governmental Committee (IGC) on IP and Genetic Resources, TK and
Folklore, established under the World Intellectual Property Organization (WIPO) in
2000, which provides a forum for negotiations on issues related to development of a
binding international mechanism on TK.

Conclusion
The call for protection of TK against misuse or misappropriation raises deep policy questions
and practical challenges alike. The changing social environment, and the sense of historical
dislocation, that currently affect many communities may actually strengthen resolve to
safeguard traditional knowledge for the benefit of future generations. Just as the
technological value of traditional knowledge is increasingly recognized and its potential
realized, the challenge is to ensure that the intellectual and cultural contribution of traditional
communities is appropriately recognized. This means taking greater account of the needs and
expectations of traditional knowledge holding communities. Its traditional qualities and
frequent close linkage with the natural environment mean that traditional knowledge can
form the basis of a sustainable and appropriate tool for locally based development. It also
provides a potential avenue for developing countries, particularly least-developed countries,
to benefit from the knowledge economy.

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