15 years ago, in the southern Indian state of Kerala, an international drug company struck a deal to share profits with the Kani tribe from an herb called Arogyapacha. Known as “the plant that gives strength”, it was used by the Kani to gain energy, and the Tropical Botanical Garden and Research Institute (TBGRI) sought to commercialize it through Arya Vaidya Pharmacy in a drug called Jeevani. But when land use restrictions prevented the Kani from selling the plant to Arya Vaidya, the company went with another source, cutting the Kani out. TBGRI sold the Kani’s knowledge to Arya Vaidya.
In such cases of what’s known as biopiracy, indigenous people are excluded from sharing profits created from their knowledge of biological materials. It’s not easy information to protect: it takes an average of five to seven years to oppose an internationally granted patent, costing up to USD 600,000.
When governments back their people, some struggles prove fruitful. In 1995, a few years before the Kani signed away their rights to Arogyapacha, a US patent for turmeric was granted to the University of Mississippi Medical Center. Turmeric is an essential spice for Indian cooking cited in ancient medicinal texts from the Ayurvedic system of medicine. One compendium, dating back to 250 BC, recommends an ointment of turmeric to treat the effects of food poison. After two years, India’s Council of Scientific and Industrial Research challenged the “discovery”, and the patent was successfully revoked.
That same year, the European Patent Office granted a patent to the US Department of Agriculture and chemical conglomerate WR Grace to create an anti-fungal product made from neem. Known to Indians as the “common man’s toothbrush”, neem has a long and well-known history of medicinal use. A full decade later, the Indian government won a battle to overturn the patent.
Indians have likened patenting turmeric and neem to taxing salt, a British-colonial practice Gandhi famously marched against for 24 days across 390 kilometers to the sea. Today, colonial powers no longer tax salt, but indigenous people fall prey to corporations who patent and charge licensing fees for use of traditional knowledge. And so the Indian government, building on one-off successes, has created an initiative to curb theft of its nation’s intellectual property, from spices to yoga.
In 2001, the Indian Government launched the Traditional Knowledge Digital Library (TKDL). Dr. Archana Sharma, who leads the project at the Council of Scientific and Industrial Research, describes the TKDL as a “dynamic database” with information continuously added and updated. At any given time, teams of about 80 experts, including experts and doctors in Indian systems of medicines (Ayurveda, Unani, Siddha, and Yoga) and information technology collaborate to document knowledge and combat piracy.
The website proclaims, “Since time immemorial, India has possessed a rich traditional knowledge of ways and means practiced to treat diseases afflicting people.” The library seeks to capture much of that knowledge, previously passed down by word of mouth.With this project, existing knowledge is available in the public domain to protect it from being misappropriated in the form of patents on non-original innovations. The library aims to provide information on existing knowledge in a format and language that can be understood internationally. Thus far, access has been granted to eight international patent offices, and the library has helped identify over 1,000 cases of biopiracy.
In 105 of those cases, Sharma boasts, “patent applications concerning India’s traditional knowledge have been withdrawn, cancelled, declared dead, terminated, amended, or rejected by the examiners on the basis of TKDL prior art without any cost within few weeks of time”.
The TKDL includes over 200,000 traditional medicine formulations comprising 30 million pages, including information in patent application format, easily understandable by examiners. Its text is searchable, and translations are available in French, German, Japanese, and Spanish, from sources originally written in Hindi, Sanskrit, Arabic, Persian, and Urdu. “TKDL breaks the language and format barrier,” Sharma says.
This is important for regulators abroad. Sharon Barner, Deputy Director of the United States Patent and Trademark Office, says she urges countries “to create and make available to examiners around the world digital libraries of their traditional knowledge to prevent erroneous patent grants”. In a statement in 2009, she cited the TKDL as an example.
Under US patent law, a printed publication anywhere in the world is effective as prior art. When it comes to patenting, the subject matter must pass four criteria: patentable subject matter, novel, useful, and non-obvious.
“Prior to the TKDL, patents were being granted on inventions of questionable novelty,” says Amir Raubvogel, a lawyer and co-chair of the Patent Group of the Palo Alto Bar Association in California. “Patent examiners were not aware of relevant prior art that may not have been accessible or were in a foreign language.”
Anirudh Goswami, a lawyer in Delhi, notes a recent prosecution of a Monsanto-owned Maharashtrian hybrid-seed firm that modified locally available eggplants (brinjals) for its product, Bt. Brinjal. “This highlights how blatant piracy of India’s biodiversity occurs,” Goswami says. “With the TKDL in circulation amongst key patent officials worldwide, the defense taken during a patent battle that there is no official documentation protecting Ayurveda, Unani or Yoga in India shall not be a plausible escape route.”
Despite such successes, some criticize the TKDL for being inaccessible to the public. “Why is it that we have a secret of our national heritage?” asks Vandana Shiva, founder of India’s Navdanya Research Foundation for Science, Technology and Ecology. Shiva believes the best defense against biopiracy is to “make it more available to the public of India, so more people continue to use it”.
In Bangalore, Sangita Sharma chairs the Annadana Soil and Seed Savers. She feels strongly about preserving seeds and knowledge. After all, her organization, Annadana, preserves over 200 varieties of heirloom seeds, grains, and flowers. “Our traditional knowledge is the result of the hard work of our ancestors,” she says. “There are so many other things that are not even recorded, but it belongs to us.”
Yet sometimes she wonders how much longer she can fight. “That’s the sad part. How are we to challenge this all the time?”