Tradition incorporated

Patents are welcome only if the traditional rights of people are protected

 
Published: Thursday 15 August 2002

the term patent is not usually well received in India. It immediately brings to mind images of biopiracy, of large transnational entities making profits out of knowledge and natural resources protected and conserved by the poor. Communities have nurtured knowledge and health systems over millennia, a prime example being ayurveda. After years of neglect and scorn, the engines that drive global capitalism have turned their attention to this wealth. The recent patent granted to India's Council of Scientific and Industrial Research (csir) on a combination of antibiotics and cow urine distillate has to be seen in this light (see "Liquid asset" p 44). While the combination is definitely a welcome innovation, the fact is that the clue for it has come from ayurveda.

What then is the compensation for the creators of this traditional knowledge base? The formal intellectual property rights system of the Trade-Related Aspects of Intellectual Property Rights (trips) does not protect knowledge, which is in the public domain. Under trips, an invention can be patented provided that it is new, involves an inventive step, and is capable of industrial application. But what is well understood today that any many new inventions have their basis in the selected knowledge, available in the public domain. This is a key emerging issue in the discussions on how traditional knowledge will be protected.

Government will argue that if and when a drug is developed based on this patent, the licence fees would go to the government, and hence to the public. In that senses, aryuvedic community will be compensated. But we would argue this is not enough. This is an opportunity to set up an important precedent. To make a point.

Firstly, in the patent application, csir should recognise and disclose all information and documents related to the known origins of this new knowledge. Secondly, it should set up a formal system for compensation for the use of this knowledge, from which its new invention is derived -- even if it is to a fund to support research or documentation on traditional knowledge. This is what the Indian government has been asking at the World Trade Organisation (wto). It is time it started practicing what it preaches.

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