Biopiracy related to Traditional

Knowledge & Patenting issues

Suvarna Pandey
Patent Attorney
S. Majumdar & Co.
New Delhi

INDIA as a Traditional Knowledge HOTSPOT

The indigenous people of the world possess an immense

knowledge of their environments, based on centuries of living

close to nature
Traditional knowledge (TK)- knowledge system held by

indigenous communities, often relating to their surrounding

natural environment like
Agriculture knowledge, scientific knowledge, technical
knowledge, ecological knowledge, medicinal knowledge

 expressions of folklore in the form of music, dance, song, handicraft

designs, stories, art work, biodiversity conservation, food techniques

Tradition based literary works

Information and all other traditional- based innovations
Healing knowledge

Ex.
Aspirin, derived from salicylic acid discovered in meadowsweet
The saliva of the vampire bat of South America opens clogged
arteries faster

Traditional Knowledge:
When an elder dies, a library burns.
It is practical common sense based on teachings and experiences

passed on from generation to generation

It is knowing the country. It covers knowledge of the environment

- snow, ice, weather, resources - and the relationships between

things
As the elders die, the full richness of tradition is diminished,

because some of it has not been passed on and so is lost

key Characteristics of TK:

are preserved and transmitted in a traditional context from

GENERATION TO GENERATION

pertains to a PARTICULAR TRADITIONAL OR INDIGENOUS

PEOPLE OR COMMUNITY

are not static, but rather EVOLVE as communities respond to new

challenges and needs

are COLLECTIVE/Individual in nature

 About 370 million indigenous and tribal people all around

the world are the real custodian and holders of traditional

knowledge

Up to 80% of the worlds population depends on traditional

medicine for its primary health care

This knowledge is indispensable for the poorest segments of

society

TK also prevents land and soil degradation, fisheries

depletion, biodiversity erosion and deforestation

INDIA IS A BIOLOGICAL DIVERSITY HOTSPOT

Biodiversity: refers to all sort of variability occurring in all living

biological forms available on earth (including animals, birds,

insects, microbes, plants)

Approximately 90% of the worlds Biodiversity is concentrated in

tropical and sub-tropical regions within developing countries,

specifically in:

Mexico, Brazil, India, Indonesia, Australia, The Democratic

Republic of Congo

An estimated 90 percent of the worlds biodiversity lies within the

territories of indigenous peoples

 Around 583 plant species are reported to be cultivated in

India
Around 334 species wild relatives of crop species
Country ranks 10th among the plant rich nations of the world
& 4th amongst the countries of Asia
ranks 7th in plant diversity
ranks 10th in endemic higher vertebrates
India has 7% of world mangrove
95% of medicinal products being used in India are plant
based

Research based on biodiversity on Top now

a days
Due to:
Demand for medicinal plant is Increasing;
Rising appreciation of natural products;
Being non-toxic
Having no side effects
Easily available and affordable

 Acts as an important input into many modern industries like

pharmaceuticals, cosmetics and agribusiness.

Mainly, TK based on biological resources is threatened by

Biopiracy ( theft of biological resources) by big multinational companies and pharmaceutical companies.

What is Bio-piracy?
A situation where indigenous knowledge of nature, originating

with indigenous people, is used by others for profit, without

permission from and with little or no compensation or recognition
to the indigenous people themselves
Developed countries are exploiting developing countries genetic

resources and indigenous communities traditional knowledge in

the name of patents on the inventions derived from those genetic
resources;
This leads to bio piracy

 Biopiracy operates through unfair application of patents to genetic

resources and traditional knowledge

Biopiracy is the theft or usurpation of genetic materials especially

plants and other biological materials by the patent process

example: use of indigenous knowledge of medicinal plants for

patenting by medical companies without recognizing the fact that
the knowledge is not new, or invented by the patenter,
And thereby the piracy deprives the indigenous community to the
rights to commercial exploitation of the technology that they
themselves had developed

Threats posed by biopiracy:

that knowledge and /or genetic resources belonging to a

region, community or country is stolen or claimed as one's

own
that the use of this knowledge or genetic resource in the area
of its origin or traditional usage may be hampered
that the patent holder will unfairly profit from the patent
that the patent claimed and awarded illegally and unethically
is bound to disturb an established system somewhere in the
world

Effects of Biopiracy:
causes depletion of Biodiversity

Examples:
Asia: Use to have more than 100,000 varities of rice in 20th
century
Now: less than a dozen are planted in 70% of land being
cultivated for Rice
India: 30,000
Now: 10 varieties

 Srilanka: 2000 varieties

Now: only 5 varieties

Depletion in wildlife diversity decreases the interaction of

beneficial wild life pathogens to humans

Loss of biodiversity is Irrreversible
Biodiversity provides various goods that is the bed & butter

for a large community population

Recent cases of Bio-piracy

Neem Patent:
US patent office granted patent on a fungicidal product derived

from seeds of the Neem

India opposed the patent by claiming that the fungicidal properties

of the Neem tree had been public knowledge in India for many
centuries

The oil from neem has been used traditionally by farmers to

prevent fungus. It was neither a novel idea nor was it Inventive.

The Patent was finally revoked by the European Patent Office.

Haldi patent In December 1993, a patent was filed by the University Of Mississippi

Medical Center, Mississippi

Applicants received US patent 5,401,504 for the use of turmeric
powder as a wound-healing agent by
Indian Government objected to the patent
The turmeric patent failed to satisfy the criteria of novelty
in view of the cited turmerics qualities documented
in ancient medical textbooks

Basmati patent Rice Tec (US Co.) obtained a patent (US 5663484 ) on a type of

rice produced by crossing a strain of Indian basmati rice with an

American variety;
The patent claimed rights in respect of basmati-like rice grown

anywhere in the Western Hemisphere. It also claimed future

rights on any new varieties produced by crossing the new variety
with existing Asian varieties

 The farmers argued that an American rice producer should not be

allowed to use the name basmati. Basmati rice is a valuable

export crop earning India approximately US$800 million a year.
As a result of a worldwide citizen campaign against RiceTec

Basmati patents, USPTO struck down large sections of the

Basmati patent.

Yoga Patent
A US-based NRI, Bikram Choudhary's applied to get copyright for

his method of teaching yoga;

He applied for the patent of yoga also;
Yoga enthusiasts and gurus ---move is unjustified as yoga belongs
to the entire human race.
USPTO has reportedly issued 150 yoga-related copyrights, 134
trademarks on yoga accessories and 2,315 yoga trademarks.
India has taken a strong view against the granting of copyrights and
patents to Yoga postures by the USPTO and is preparing to oppose
patents

Revocation of patent for the Indian variety

of wheat Nap Hal:
MONSANTO, was assigned a patent (EP 0445929 B1) on the

Indian variety of wheat Nap Hal under the simple title plants.
On January 27th 2004 Research Foundation for Science
Technology and Ecology (RFSTE) along with Greenpeace and
Bharat Krishak Samaj filed a petition challenging the patent rights.
The patent was resultantly revoked in October 2004.

Ayahuasca case
In 1986, Ayahuasca, a vine native to the Amazon Rain Forest, was

patented by Loren Miller, an American scientist and entrepreneur;

The plant has been used by healers and religious leaders to treat

sicknesses, contact spirits, foresee the future throughout the

Amazon tribes for generations;
The council for the tribe applied and obtained a rejection of the

ayahuasca patent from the U.S. Patent and Trademark Office.

Colgate case:
Colgate was accused of stealing 1,000-year-old Indian toothpaste

recipe

Colgate obtained a US patent for the

tooth powder composition comprising

rust-like red iron oxide, clove oil, camphor,
black pepper and spearmint ;
Indian activists are accusing Colgate of 'biopiracy' for allegedly stealing

and patenting a 1,000-year-old folk recipe for toothpaste.

All the ingredients date back to antiquity. They have been used by the

common Indian man for thousands of years.

Efforts are going on from India for building 34 million webpages

document for substantiating that the ingredients were known in the art.

Criticism of Biopiracy
Unfair, Unethical and a threat to the existence of indigenous

cultures;
Companies that take genetic resources from indigenous
communities and develop product based on that knowledge and
having patent on it;
Indigenous communities are so barred from using or exporting
their biological resources and traditional knowledge that they have
developed. Eventually causes traditional knowledge to become
extinct;

Why do we need to protect traditional knowledge

Legal recognition of the rights of the holders of the TK who are
mainly the tribal and indigenous people of India is the need of the
hour.
The indigenous and tribal people who is conserving biodiversity

by adopting sustainable method deserves to be recognized and

compensated goes without saying.
We need to sensitize the people on these issues as the public

awareness about TK is very low.

 India was the first to raise the fundamental issue at the World

Intellectual Property Rights Organisation (WIPO) as to why the

traditional knowledge-based system should not be treated at par
with the industry-based system.
Until and unless the very own traditional knowledge of our is

protected, the country would have to fight for patents claimed by

other countries as in the case of Haldi, Neem and Basmati .

Bioprospecting
The search for biological resources & accompanying

indigenous knowledge for the purpose of commercial

exploitation;
A process of appropriation and commercialization of natural

products ranging from plants and animals;

Bioprospecting could be a useful tool in economic

conservation;

Bioprospecting or Biopiracy
Bioprospecting involves the exploration, extraction and

screening of biological diversity and indigenous knowledge for

commercially valuable genetic and biochemical resources .

Unfortunately, indigenous people are all too

often unaware of the value of their knowledge.

Legislation has attempted to prevent such unrestricted

bioprospecting or what is often referred to as biopiracy.

 Bioprospecting or collecting biological samples,

can help medical and other scientific research;
while Biopiracy or illegal collection, can:
infringe on the sovereign rights of nations
decrease the economic health of indigenous communities
deplete or destroy species

Why companies choose Biopiracy instead of

Bioprospecting?

To be at the top in the competition in obtaining the patent

over the biological material;

Companies dont have time to collect the sample legally;

Need for legal Protection and preservation of

Traditional Knowledge
The loss of language leads to loss of knowledge, the process

accelerated by cultural change and globalization;

The most common reason given for why TK protection

should be granted is the claim that Northern companies are

exploiting the biodiverse South by patenting their
knowledge.

Efforts toward curbing Biopiracy

Curbing biopiracy is about ensuring that indigenous

populations receive justice and fair compensation for the

use of the knowledge and genetic materials;
Individual countries must change their laws to reflect the

need for fair compensation for indigenous populations;

Empowering indigenous peoples will yield positive

results;

 There are international laws in place to regulate bioprospecting such as

Convention on Biological Diversity and Nagoya Protocol;

Access to genetic resources in exchange for fair and equitable sharing of

benefits;
sharing of benefits through technology transfer, research results, training

and profits can contribute to poverty reduction and sustainable

development in biodiversity rich developing countries;
The Convention on Biological Diversity, 1992 imposes obligation to

conservation, sustainable use, sharing of information on, and equitable

sharing of benefits derived from biodiversity;
But the method of achieving the objective is left to individual nations

In India:
Traditional Knowledge Digital Library - A tool for prevention

of misappropriations of traditional knowledge

TKDL records our age old traditional knowledge;

TKDL contains more than 2.60 lakh formulations from the texts

of traditional medicine systems of India which are Ayurveda,

Unani and Siddha.

The Library gives access to non-patent literature databases on

traditional knowledge of India.

 TKDL covers Indian Systems of Medicine, viz., Ayurveda, Unani,

Siddha and Yoga available in public domain.

The abstraction is done by the subject experts.

The database will provide information on modern as well as local

names in a language and format understandable to Patent

Examiners;

Acts as a bridge between formulations existing in local languages

and a Patent Examiner at a global level;

Fusion of country's traditional knowledge with modern science.

 Library collects the information on traditional knowledge

from the literature existing in local languages such as

Sanskrit, Urdu, Arabic, Persian and Tamil in digitized format.
Information will be available in five international languages:

English, German, Spanish, French and Japanese.

It will be mandatory for patent examiners to refer to this

database before granting a patent now.

Success story of TKDL

Uniliver (Netherland) have withdrawn their application

EP1607006 for "Functional berry composition" dated 04

August 2009 after submission of TKDL prior art evidence(s).
Jumpsun Bio-Medicine (Shanghai) Co. Ltd, China have

withdrawn their application no EP 1889638 for "Medicaments

and food for treatment or prevention of obesity and/or
diabetes containing cicer arietinum extract
Industrial Research Limited and Otago Innovation Limited /

New Zealand have withdrawn their application no. EP

1750809 for "Citrus Fruit Skin extract for Angiogenesis
promotion" based on the TKDL evidences.

 Amcod Limited, Mombasa, Kenya have withdrawn their

application no EP1807098 for "Herbal compositions for

treatment of diabetes"
GW Pharma Limited Porton Down Science Park Salisbury
Wiltshire SP4 0JR / Great Britain [2010/16] have
withdrawn their application no EP2175848 for
"Therapeutic uses of Cannabigerol"
Nestec S.A. Avenue Nestl 55 1800 Vevey / Switzerland,
have withdrawn their application no EP2263481 for "Green
tea extracts of improved bioavailability
EP1849473 "relating Chinese traditional medicine
composition for treatment of avian influenza/Bird Flu" has
been refused claims on use of Kalamegha (Andrographis) and
Pudina (Mint) for the treatment of Avian Influenza.

Biopiracy and Patent

Patents on illegally acquired biological source materials are

considered acts of biopiracy.

Natives own the intellectual property rights to their traditional

knowledge.

A negative impact:
Many patents either deny economic compensation to indigenous groups

entirely or they prevent indigenous groups from using specific plant

materials altogether.

The patent holder will unfairly benefit from the obvious result of nature

rather than a product of human efforts or skill.

Efforts to bar granting of patent on biological material:

Provision for mandatory disclosure of source and geographical origin of

the biological material.

The non- disclosure and wrongful disclosure of the biological material is a

ground for patent opposition and Revocation.

Traditional Knowledge, whether written or oral, treated as prior art in

determining patentability.