India: TKDL - Protecting Traditional Knowledge Through Procedural Irregularities?

It was in the 20^th century when the ‘extinct' nature of various practices gained importance. It was those practices, developed and practiced by indigenous people which were gradually been considered for providing an optimal level of protection at the global level. We often advocate for the protection of those who are important and bear some value in it. Those practices were never thought of any importance until we saw various countries advocating for the protection of such traditional practices, commonly known as Traditional Knowledge (TK). The advent of technological inventions has drifted us from the era of traditional usages to modern equipment. But this technological invention too has provided us a new way to protect our traditional practices.

The protection of Traditional Knowledge has always been on the agenda for various global meet. The real problem comes with the lack of efficient documentation which has resulted in a great disadvantage to the indigenous people. What is more important is the prior art that is associated with the TK which often result in benefitting various inventor due to no proper documentation. The Traditional Knowledge Digital Library (TKDL) was set up for benefitting the cause of documenting TK, by the collaboration of the Council of Scientific and Industrial Research, The Ministry of AYUSH, and The Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM) in the year 2001. Nine patent offices in the world that have access to India's TKDL such as, The European Patent Office, US Patent Office, Japanese Patent Office, UK Patent Office, German Patent Office, Intellectual Property Office, Australia, Canadian Patent Office, India Patent Office, and Chile Patent Office.

Performance vs. Problem

If we take into consideration the European Patent Office, 36 patent applications were rejected in an initial couple of years and up till 2015 out of 189 traditional knowledge, in the European Patent Office, 17 were rejected, 30 were deemed withdrawn, 31 were abandoned and 21 were accepted. The remaining 90 applications were under consideration around 2016. (https://www.giswatch.org/). TKDL as an idea has achieved significant importance in bringing TK to the mainstream.

For the indigenous people, traditional knowledge is not considered as a commodity or property; hence the notion of property is commonly not associated with the TK. The current regime of Intellectual property does place TK in the public domain and claims property rights over it. Various academicians have often reiterated the fact that this framework fails to understand that TK is not property belonging to a private person. Generally, the basic perception, on the contrary, has always been that the alien legal formulation will not be better, instead of granting protection so that they can claim self-sufficiency and self-determination could be a better approach for respecting TK. It has also been contended that TKDL simply lists the TK while not taking into account the details in the context in which the TK is associated, thereby, relying on half information.

Drawback

While there cannot be any doubt with TK helping ascertain the patent application, the problem arises with lack of knowledge and training being associated with TKDL. It has been contended that examiners often are not trained to identify TK as prior art. As per the information available in the USPTO office, the use of Aloe Vera to treat dry eyes was granted patent. The only difference was the use of chlorinated water instead of clean water. Applicants also do not search the prior art especially related to TKDL and leave it to the patent examiner generally creating an ambiguous stand with regards to the prior art status of TKDL. This problem can be solved if the geographical origin of the knowledge associated with the TK could be specified in a more comprehensive manner which can further help the patent examiner to narrow down their sample space in which the search has to be conducted thereby having more efficiency.

While TKDL has its advantages yet it demands more substantive changes for a better result. Creating a database is an important part but the resources should also be employed for the upliftment of the community. Undoubtedly, a standardized understanding of the prior art across the legal system could be more beneficial in the protection of Traditional Knowledge.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.