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Ginger can’t be patented in Europe now
PremiumBig achievement: Samir Brahmachari, director general, CSIR, says it is a very positive step in protecting India’s traditional knowledge.
New Delhi: India’s traditional knowledge—such as medicinal properties of neem and turmeric—could now become more difficult to patent for drug makers in Europe.
The European Patent Office, or EPO, will consult an Indian database that lists traditionally known drug formulations before granting patent rights.
The Council for Scientific and Industrial Research, or CSIR, India’s largest state-managed research agency, will begin sharing the home-grown catalogue with EPO later this month. CSIR and EPO recently signed an access agreement to this effect. This will likely result in at least 40 patent filings in Europe getting rejected, which could have otherwise passed muster.
“The EPO doesn’t give a patent for an invention which has already been known in public anywhere else," Rainer Osterwalder, director, media relations, EPO, told Mint by email.
The Traditional Knowledge Digital Library, or TKDL, has been created by the National Institute of Science Communication and Information Resources, or Niscair, a CSIR body, and contains a 24-million-page searchable database that translates text from Sanskrit into English, German, French, Spanish and Japanese.
“TKDL provides a new major source...in technical fields that are sometimes concerned with questions of traditional knowledge," Osterwalder said.
CSIR has collaborated with the health ministry’s department of Ayush (Ayurveda, yoga and naturopathy, unani, siddhi and homeopathy) to make this happen.
A CSIR official said that though 2,000 existing patents can now be challenged, there were no plans to initiate litigation. “This is meant as a deterrent...though technically we can initiate litigation saying that these patents are based on well-known formulations, it would be too expensive and long-drawn," the official said on condition of anonymity.
“This is a very positive step for us in protecting traditional knowledge. It’s a big achievement," Samir Brahmachari, director general of CSIR, said over the phone. The next step is to take this initiative to the US. S. Jalaja, secretary, department of Ayush, said: “This is a big breakthrough for us and we are also in talks with the United States Patent and Trademark Office for a similar agreement."
Patenting of products that are based on of India’s traditional knowledge has long been an issue the government has been struggling to resolve. In a widely reported case, EPO in 1995 granted a patent on the anti-fungal properties of neem. India opposed the patent, which was finally revoked and invalidated after 10 years of litigation. Again in 1995, USPTO had granted a patent on the wound healing properties of turmeric that was revoked in 1997.
“India did fight successfully the revocation of patent on wound healing property of turmeric at United States Patent and Trademark Office and (a) patent on anti-fungal properties of neem at European Patent Office," Niscair director V.K. Gupta, who is also lead coordinator for the project, said in a 2006 report. “However...(a) legal battle on revocation is extremely expensive and time consuming."
For anything to be granted a patent, the applicant must prove that it is novel and not previously known. “Indian traditional knowledge is prior art, which means it is already known publicly. Hence, once TKDL opens out to EPO, anyone applying for a patent on which we hold traditional knowledge will not be successful," said Elizabeth Varkey, an advocate at the Kerala high court.
“Any patents that have been granted already and fall under TKDL can also be revoked, though that would be a long, expensive process," she said.
EPO, however, is unsure of the extent to which TKDL will be applicable. “Many cases affected by aspects of traditional knowledge are occurring in the field of medicinal preparations. We estimate that at the EPO, about 100 patent applications per year are related to such aspects, but not all of them relate to subjects covered by TKDL," Osterwalder said.
There is an argument that the database be used other ways too. “The government should also think about negotiating access rights (to TKDL) to private parties and other non-governmental entities. Given that the new chemical entities pipeline is drying up, innovators need to focus more on traditional knowledge that offer potentially unique insights for new drugs," said Shamnad Basheer, professor of intellectual property law at the National University of Juridical Sciences, Kolkata.
“Also private parties could then challenge patent applications that misappropriate Indian traditional knowledge."
radhieka.p@livemint.com
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