Introduction
There are many statues and common law that provides protection for intellectual property rights. In general, traditional knowledge and indigenous knowledge refers to the knowledge that we have inherited or that is passed on by our ancestors. Traditional Knowledge is a depository of information acquired over many years of trial and error, success and failure, and has been passed down at family level.
Therefore, Traditional knowledge has its economic worth in accordance to its use. Due to maha gurus, several customs and their methods, India is full of traditional knowledge. This knowledge may be utilised and understood beyond its home nation also. Sui generis law has the ability to safeguard the traditional knowledge of India but its role will comes into play when the need to preserve old Indian traditional knowledge will arise.
What is traditional knowledge?
Traditional knowledge refers to the knowledge that is passed down by our ancestors after several trials, success and failures. The idea of traditional knowledge includes the use of biological and other medical treatment procedures, agricultural treatment, as well as knowledge of production techniques, music, rituals, literature, designs, and other arts. Traditional knowledge thus includes knowledge that can be used in engineering, agriculture, medicine, and cultural activities.
What is Sui generis law?
Sui generis means “a special kind” in Latin language. With reference to IPR, sui generis refers to a sort of protection mechanism that operates outside the established framework. It may also be thought of as a system created and designed especially to meet a certain need with specific requirement.
Traditional Knowledge does not easily lend itself to protection under current legal regimes since it is built on the idea of community property ownership, whereas current IPR rules are centred on the Western idea of property ownership.
TRIPS recognizes the importance of sui generis law by stating in its Article 27.3(b) that, “WTO members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.”
Sui generis in relation to traditional knowledge
The risk of appropriation and abuse by foreign parties has increased due to the rising commercial usage of Indian traditional knowledge beyond the traditional framework. This problem has prompted some nations to have their own sui generis law for preserving traditional knowledge. However, India has realised the economic value of traditional knowledge and the need to protect it in 1997 after US sought a patent on basmati rice and turmeric. Even though intellectual property laws offer restricted protection to traditional knowledge, there isn’t any effective international legal protection in this area.
Traditional Knowledge protection in India.
New technological advancements provide significant threats for the international legal community in establishing new worldwide legal norms to address the issue of IP protection.
In 1997 turmeric case brought the attention of the whole world to India. India achieved a significant victory when it was able to withdraw a patent which was filed by two US-based scientists.
The dispute started in 1995 when the US Patents and Trademarks Office (USPTO) granted a patent to two researchers from the University of Mississippi Medical Centre for their discovery of turmeric’s capacity to treat wounds.
In India, where people have used turmeric for many centuries to cure various illnesses, including wounds, this came as a shock. CSIR then requested USPTO to invalidate the patent on the grounds of it being “prior art”. CSIR eventually succeeded in persuading USPTO that turmeric’s therapeutic benefits were in fact commonly known. After that, the patent was cancelled.
The incident with the turmeric patent was viewed as a warning sign for indigenous traditional knowledge, particularly in the area of medicine. For overcoming this issue traditional knowledge digital library has been created by the government and the CSIR.
Other Landmark cases
Neem Patent
Neem patent was filed by W.R. Grace and the Department of Agriculture, USA in European Patent Office for a method of controlling fungi on plants with Neem oil formulation. To which India opposed and submitted evidence of ancient Indian ayurvedic texts that have described the hydrophobic extracts of neem seeds were known and used for centuries in India, both in curing dermatological diseases in humans and in protecting agricultural plants form fungal infections. The EPO identified the lack of novelty, inventive step and possibly form a relevant prior art and revoked the patent.
Basmati Patent
Ricetec Inc. was granted patent by the United States Patent and Trademark Office in late 1997 for the novel ‘grain’ known as Basmati. The company claimed for the protection of superior attribute ‘basmati’ crop. Later on it was opposed by India for safeguarding its traditional crop basmati while Thailand contested for jasmine rice. In 2000, after examining all the evidences, the Indian Government challenged the patent.
Nonetheless, India pleaded that more than 75 percent of US rice imports come from nations such as Thailand, Pakistan, and India thus adding to the point that patent was not novel and obvious in nature.
The patent’s validity is now null and void. After a three-year battle, India compiled data and evidence to dispute the patent’s validity. On the contrary, the USPTO granted the patent claim for three strains of hybrid basmati out of approximately 20 claims. The remaining three basmati strains were provided protection due to a noticeable divergence from the basic strain of the crop.
Global Scale protection of traditional knowledge
Communities all across the world are calling for a worldwide legal tool that would grant equal rights & protection to their traditional knowledge. This is known as ‘sui generis’ protection.
However, in order for such a tool to be developed, countries must first agree on what constitutes traditional knowledge and what rights communities should have. While communities desire to protect their legacy from exploitation, industry professionals argue that such a wealth of information should be made available to the public.
To reach this agreement, governments must take a proactive approach and implement legislation to conserve traditional knowledge systems. Sui generis protection can only be established with a joint effort from all countries.
CONCLUSION
Sui generis law is the need of the hour, any further delay in this field will increase the possibility of bio-piracy and misuse. Infact it will be not wrong to say that the lack of a unique system will ultimately lead to denial of access to many groups of not only to their knowledge but to their traditions also.
Traditional knowledge systems are difficult to identify due to their nature. Without proper definitions, it is hard to make any system of traditional knowledge. Even though most countries believe that such system is necessary, it is important to strike a balance between the interests and livelihoods of knowledge-holding communities and the overall good of the public while doing so. With the Traditional Knowledge Digital Library, India has demonstrated to the world that, with policy changes, protection measures can be put in place to prevent the exploitation of traditional knowledge. It is now time for other countries to follow the suit.
