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Devinder Sharma on the proposal to setup a Traditional Knowledge Digital Library
June 2002 : There is excitement in air. India's proposal of setting up a 'Traditional Knowledge Digital Library (TKDL)' has been selected for a pilot study in 170 countries. And even before the ink has dried, digital library is being hailed as the answer to the ever-growing threat of biopiracy of traditional knowledge and folklore. The digital library of traditional knowledge will have some 35,000 slokas or verses drawn from the available literature on one the Indian systems of medicine, Ayurveda. It will in addition have 1,40,000 pages of information,which will be easy to retrieve. These CD roms will be made available to each of the patent offices world wide with the hope and expectations that the patent applications will be matched with the details provided so as to ensure that a patent is not granted on something that was traditionally known. At the face of it, the digital library seems to be a wonderful weapon against biopiracy. After all, public outcry and outrage against some of the better known cases of biopiracy or thefts of traditional knowledge - neem, turmeric, brinjal, ayahuasca and quinoa - could have been avoided if those who granted these patents knew that the medicinal or insecticidal properties of these plants were widely known among the traditional communities in the developing countries. In technical parlance, these patents were based on 'prior art'. It is however not as simple as that. In a world where profit and greed has become the new economic mantra, private companies will go to any extent to manipulate what is already known to project it as an invention or a novelty. Any tinkering of the original medicinal remedy with a little cosmetic covering can be easily presented as a novel product that was not previously known. It has happened in the past. For every successful revocation of a patent, whether it is neem, turmeric or ayahuasca, there are at least a thousand others that simply go unnoticed. The TKDL Task Force itself was astounded to learn that of the 4,896 references on 90 medicinal plants in the United States Patent and Trademark Office (USPTO) database, 80 per cent of the references pertained to just seven medicinal plants of Indian origin. In other words, nearly 4,000 patents or patent applications are based on the medicinal properties of plants that were already known. The Task Force studied the patents and interestingly found that 360 of the 762 patents on medicinal plants that were granted by USPTO could be easily categorised as traditional. Does it mean that once the digital library is in place, the USPTO will strike down these faulty patents? The answer is no. Does it mean that the USPTO will ensure that in future no such patents are granted? The answer again is no. After all, what is available in the Ayurveda verses is not scientific decoded language of the medicinal properties of the native plants. What is presented before the patent offices, on the other hand, is mired in technical details and legal complexities that is difficult to easily decipher. There are patent applications pending before the USPTO, for instance, which run into 1,000 pages. It has already been said that a complete examination of this patent application alone will not be complete before the year 2035 ! Take the case of a patent granted on the ailment 'dry eyes'. In the Indian literature, 'dry eyes' control has been spelled out through the use of leaves of Kumari plant (aloe vera). The remedy is to take few leaves of aloe vera, wash these in clean water and then crush the leaves. Put some drops of the solution that is extracted from the leaves into the eyes and the 'dry eyes' problem is taken care of. In the patent application that has been granted by the USPTO, the only difference is that clean water has been replaced with chlorinated water. And of course, there is enough technical jargon like temperature etc to make it look as if it is a novel product. The proposed digital library will therefore be only helping the companies to easily scout for the commercial uses of the medicinal and therapeutic properties from the database. A minor tinkering or value-addition will qualify it for the grant of a patent. And then, how will the infringement be checked, is something that has been very easily left to interpretation. Even in a country where patent and theft of intellectual property rights has become an emotive issue, it has been rather difficult to fight the piracy of traditionally known products like basmati rice. The Ministry of Commerce has, in fact, issued a circular saying that it has no money to take the basmati battle any further. If the government has no money and the political will to challenge and fight the patent on basmati rice, which is a culturally and politically sensitive issue, it is futile to expect any meaningful challenges to any more cases of biopiracy. To challenge and fight the patent infringements is simply prohibitive. In the case of basmati rice, the challenge came only from India while the scented rice is also grown in neighbouring Pakistan. Despite first making claims that it too will join the battle against basmati rice, Pakistan chickened out when the cost of the legal battle was worked out to something around US $ 3,00,000. Not only the developing countries, even the rich industrialised countries find it difficult to fight the legal patent battles in the US Courts. A British company BTG, for instance, had a filed a case for patent infringement over the use of hover crafts in use by the Pentagon. BTG won and the Pentagon was forced to fork out US $ six million in penalties. But the lesser known fact is that the company had spent a whopping US $ 2 million towards lawyers' fees. Even adequate protection and safeguards, as spelled out under the National Biodiversity Act, and in the Patent (Second Amendment) Bill 1999, does not guarantee that such patents will not be drawn abroad. In India, the grounds for rejection of the patent application as well as revocation of the patent include non-disclosure or wrongful disclosure of the source of origin of biological resource or knowledge in the patent application, and anticipation of knowledge, oral or otherwise. It has also been made necessary for patent applicants to disclose the source of origin of the biological material. Other provisions include anticipation of invention by available local knowledge, including oral knowledge, as one of the grounds for opposition as also for revocation of patents, if granted. In the absence of any global safeguards, the digital library will become a much wanted source of information on bio-prospecting for the private companies. If such digital libraries are constructed all over the world, the private companies will surely laugh their way to the banks. And if you are wondering as to why the World Intellectual Property Organisation (WIPO) and the UNCTAD is showing so much of interest in creating the database for traditional knowledge, the answer is obvious. Both these organisations are desperately pushing in for a system that legalises the monopoly control over what was traditionally known. Documentation of traditional knowledge has therefore to be seen in the national interest before any move to make the community knowledge accessible globally. To say that such initiatives will come with benefit sharing is to duck the real and sensitive issues linked to its theft and misappropriation. Perhaps this can best be done by stopping the documentation process and the subsequent creation of the digital database. Heavens are not going to fall if documentation of traditional knowledge and putting it in the form of a digital library is stalled till an effective safeguard mechanism is prepared. The only other plausible approach is to do what the Chinese have done. Between 1992 and 2000, China revised its patents laws twice to ensure that it could draw intellectual property control over its unique system of medicine. China has drawn a total of 12,000 patents on the its medicine system and therefore does not have to worry about constructing a digital library. Devinder Sharma
June 2002 Devinder Sharma is a New Delhi-based food and trade policy analyst. Among his recent works include two books GATT to WTO: Seeds of Despair and In the Famine Trap