Preservation of authenticity of any invention within its original sources is
more often than not, tied along with the concept of Intellectual Property
Rights. These rights are the rights awarded in terms of ownership to the creator
of the inventions. These are enshrined in Article 27 of the Universal
declaration of human rights which guarantees the right to profit from the
defence of one's material and moral interests coming from the creation of works
of art, literature, or science.
The Paris Convention for the Protection of Industrial Property (1883) and the
Berne Convention for the Protection of Literary and Artistic Works (1886) were
the first international agreements to acknowledge the significance of
intellectual property. The World Intellectual Property Organisation (WIPO)
regulates both treaties.
With the advent of the concept of Intellectual Property Rights, creators
worldwide have been preserving the ownership and profit of their creations.
Nevertheless, traditional knowledge and cultural manifestations are frequently
not covered by IP laws' provisions for protection. Due to the importance of
traditional customs, cultural practises, and ancient medicinal knowledge to the
lives and livelihoods of millions of people, especially in developing nations
like India, there are currently worries regarding the exploitation of these
Traditional information (TK) is the understanding, experience, expertise,
information, and applications that are developed, maintained, performed, and
passed down from generation to generation within an area or community,
frequently serving as a component of that group's cultural, social, or spiritual
identity. A wide range of situations, including those involving agriculture,
science, technology, ecology, medicine, and biodiversity, can be used to define
The illegal capture of agricultural and indigenous communities' knowledge and
genetic resources by people or organisations attempting to monopolise them
through patents or other forms of intellectual property is called Biopiracy,
often referred to as scientific colonialism.
Traditional knowledge and cultural manifestations must be preserved, recognising
two broad virtues. Firstly, to prevent others from utilising or securing
ownership of the Intellectual property right over the cultural knowledge.
Secondly, granting the legal ownership of these Intellectual Property Rights to
the authentic source.
Likewise local and indigenous people have maintained that public claims made
without their agreement to their awareness constitute an appropriation of their
identity and legacy and a violation of their basic, unalienable, and collective
The Indian legal framework has deployed a certain degree of protection of
traditional knowledge cultural manifestations, and ancient medicinal knowledge
through Indian Patents Act, 1970, Indian Copyright Act, 1957, and Biological
Diversity Act, 2002.
Section 3(p) of the Indian Patent Act, 1970 prohibits the protection of
traditional knowledge (TK). An innovation that is essentially common knowledge
or that aggregates or duplicates well-known characteristics of a component or
components that are common knowledge is not an invention and cannot be patented.
Innovative displays of Traditional Knowledge holders, especially those made by
indigenous and indigenous artists, can be protected under Section 57 of the
Copyright Act against unauthorised duplication and use. The relationship between
authors, artists, and other creators and their works is governed by moral
The Biological Diversity Act aims to control access to biological resources and
related traditional knowledge. It also stipulates the fair distribution of
profits resulting from their utilisation.
There are several cases which can be referred to within the context of
Intellectual Property Rights of traditional knowledge (TK) of India and its
Aftermath of the cases:
- Basmati Patent:
One of the most popular case laws revolving around biopiracy in the Indian
context is the basmati rice case. Before the UK Trademark Registry, Rice Tec
Inc. submitted an application for registration of the mark "TEXMATI."
Agricultural and Processed Food Exports Authority (APEDA) successfully resisted
The US Patent issued to Rice Tec by the US Patent Office was one of the
papers cited by Rice Tec as supporting evidence for the registration of the
aforementioned mark. This is how this patent came under dispute. The
aforementioned patent included 20 claims that pertained to several rice
varieties as well as a unique rice plant, as well as to plants, grains, seed
deposit claims, and a technique for choosing a rice plant for breeding and
After this incident, the Indian government formed a task force under the
leadership of the secretary of the ministry of industrial development to
investigate the viability of challenging the aforementioned US patent through
re-examinations. The Task Force then established a technical committee, mostly
made up of ICAR and CSIR scientists, to thoroughly review the patent
specification and gather any relevant documentation in order to submit a request
for re-examination of the US patent. Eventually, a request for this patent's
re-examination was submitted. As a consequence, Rice Tec consented to drop 15 of
the 20 patent claims and amend the invention's title so that the term "Basmati"
is no longer used.
- The Neem Patent:
Neem (Azadirachta indica), is a species of tree widely available in India which
contains medicinal properties. The issuance of a patent to the corporation W.R.
Grace caused controversy, which may be regarded as a first for India and cast
question on the strictness of the patent system. The business received a patent
in the US and the EU for a formulation that contained azadirachtin, the active
element in the neem plant, and was intended to be utilised for its pesticidal
The applicant acknowledged that he was aware of neem's
pesticidal properties and emphasised that it is difficult to store azadirachtin
for a prolonged period of time without neem. The US patent that was issued only
covered a small portion of the applicant's innovation and gave them the only
right to employ azadirachtin in the specific storage method that was disclosed
in the application.
As a result of the controversy surrounding the issuance of the aforementioned
invention, it was challenged through re-examination and post-grant opposition
processes by the European invention Office (EPO) and the United States Patent
and Trademark Office (USPTO), respectively. Despite the opposition's failure at
the USPTO, the European Patent Office upheld the decision, finding that the
awarded patent lacked originality and inventive step.
- Kani Tribe- Jivani:
The use of benefit-sharing models for indigenous innovation is starting to
witness new assessments. It is worth citing an illustration from India. It has
to do with a medication that was created from and is based on the active
components of a plant called Trichopus zeylanicus (Arogyapaacha), which is
belongs to the Kani tribes of Kerala. Researchers from Kerala's Tropical Botanic
Garden and Research Institute (TBGRI) learned about the plant that is said to
boost the immune system and give you more energy. The Kani Tribe uses the
medication since it is conventional wisdom.
These researchers separated,
examined, and combined the component to create a substance they called "JIVANI,"
the source of life. A significant Kerala-based Ayurvedic pharmaceutical firm is
producing the tonic.
It is encouraging to learn that TGBRI has taught 25 tribal families how to grow
the plant close to their forested homes. Each household made roughly Rs. 8,000
on the sale of leaves from Trichopus zeylanicus cultivation in a half-hectare
area in the first year alone.
- Turmeric patent:
For its ability to heal wounds, turmeric was given a patent by the United States
in 1995 to the University of Mississippi Medical Centre. The use of "turmeric
powder and its administration", both orally and topically, for wound healing,
was the claimed subject matter. It has been given the sole authority to sell and
It was a monumental endeavour to uncover written literature on the
use of turmeric powder through oral as well as topical routes for wound healing,
even though it was generally known that the usage of turmeric was known in every
family in India since centuries. 32 references in Sanskrit, Urdu, and Hindi were
found after thorough investigation in these three languages.
Consequently, the patent was cancelled by the USPTO, who agreed that using
turmeric to treat wounds was an ancient practise and that the claims stated in
the invention were apparent and expected. As a result, in the turmeric case, the
TK that belonged to India was protected.
As a result of these lawsuits, which served as a wake-up call, the Indian
government established the Traditional Knowledge Digital Library (TKDL) and
included traditional knowledge to the International Patent Clarification System.
India has launched the TKDL project to digitise and catalogue knowledge that is
already in the public domain in order to speed up information organisation,
distribution, and retrieval.
Authorities compare an idea to publicly available
prior art before awarding a patent. Documenting knowledge will allow them to
identify inventions that are already in the public domain and determine whether
they qualify for patent protection, preventing the theft of traditional
Potential remedies for resolving these issues include incorporating traditional
knowledge holders and communities, increasing understanding among IP experts and
policymakers, and putting benefit-sharing agreements into practise. In order to
advance cultural heritage and economic growth while upholding the rights of
communities and those who have traditional knowledge, it is essential to
continue to create and put into place efficient procedures for the protection of
traditional knowledge and cultural manifestations.
- Indian Patents Act, 1970
- Indian Copyright Act, 1957
- Biological Diversity Act, 2002