Traditional knowledge: Protecting age-old practices

The Chinese have sworn by it for generations. India is known for lauding its healing powers. In tribal regions of sub-Saharan Africa it’s a viable alternative to over-the-counter pharmaceuticals.

Across the world, natural or traditional medicine is a way of life for millions. For example, the huang qi (Astragalus) plant is used in Chinese herbal medicine to treat diarrhoea and blood deficiency diseases.

Despite this, such medicine—along with other forms of traditional knowledge including clothing, materials and foods—does not receive a high level of intellectual property protection. For example, while a third-party patent covering a ‘traditional’ method may be rejected, there is no way for the community that invented that method to profit from it using IP.

Within the confines of the World Intellectual Property Organization (WIPO) in Geneva, talks have intensified among member states about whether an agreement on protecting traditional knowledge can be drawn up.

According to WIPO, traditional knowledge is defined as knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.

Although the terms ‘cultural’ and ‘spiritual’ may suggest that the owners or creators of traditional methods do not have a strong desire to profit from their methods, it has caused concern that there is not an established form of protection.

Earlier this year, LSIPR’s sister publication WIPR spoke to Wend Wendland, director of the traditional knowledge division at WIPO. He told us that work was in place to establish a law that would allow, for the first time, “indigenous peoples to control and benefit” from their traditional knowledge systems and resources.

Is it needed?

All this is easier said than done, hence the near 15-year delay in establishing a treaty or agreement. More to the point, would robust protection actually benefit communities and is it needed in today’s world?

Jason Rutt, executive at law firm Rouse, is not convinced.

“I am not a massive fan of the protection of traditional remedies. If something is publicly known, that should be a bar to patentability,” he says.

“The idea that we would grant protection to one community, yet not to another, seems messy to me.

“Given that the normal remedies of opposing and invalidating patents are not easily available to communities, much of the protection of traditional medicine should come from better prior art searching by patent offices,” he says, referencing the need to block third parties from patenting traditional knowledge.

India has established a method for detecting prior art related to traditional knowledge.

It has compiled a searchable database, the Traditional Knowledge Digital Library (TKDL), which includes details of traditional medicines and methods that can be used as evidence by patent examiners when assessing applications.

According to Ranjna Mehta Dutt, partner at law firm Remfry & Sagar in Gurgaon, the TKDL has around 20 million pages filled with information on traditional knowledge.

“It contains a list of formulations and is free to access for all patent offices in the world,” she adds.

Through this system IP offices are able to determine whether a claimed invention that may include aspects of traditional knowledge should be deemed patentable.

India is the only nation in the world that has compiled data on traditional methods in this way, but it is not the only country to use traditional practices.

Rutt says that databases such as this have made life easier for both attorneys and examiners.

“I remember when people searched at patent offices through endless papers,” he adds.

Two types of protection

Although in the very early stages of establishing a treaty, WIPO is seeking to strengthen ‘defensive’ protection and implement ‘positive’ protection.

Defensive protection prevents people from outside a certain community from acquiring IP protection, such as a patent, which is related to methods surrounding traditional knowledge.

‘Positive’ protection goes a step further and grants rights that empower communities to promote traditional knowledge, control its uses, and benefit from its commercial exploitation.

“I am not a massive fan of the protection of traditional remedies. If something is publicly known, that should be a bar to patentability.”

Part of the problem is that under the conventional IP system indigenous knowledge is often regarded as being in the public domain.

Negotiations at WIPO, which are taking place within the organisation’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, have been underway for some years but have not taken place since 2014.

A two-day seminar held by WIPO in June 2015 took advantage of the pause in the formal negotiation process to create a space for informal discussion about the next steps.

Rutt and Dutt agree that while strengthening defensive rights would be relatively straightforward, issuing positive rights would be more problematic.

Rutt says that if something has been known as a traditional medicine for years, it should not be patentable. He adds that traditional knowledge should remain a largely “defensive issue” to stop others from patenting traditional remedies.

Dutt points to two notable examples of when defensive protection of traditional knowledge has prevailed in India.

In the first, starting in 1995, two Indian nationals based at the University of Mississippi Medical Center were granted a patent, US number 5,401,504, covering the use of the spice turmeric in antiseptic healing.

As Dutt explains, turmeric, probably better known in the Western world as a spicy ingredient in Indian dishes, has been “known for ages” to also have healing qualities for wounds and as an antiseptic.

A year later, in 1996, India’s Council of Scientific & Industrial Research opposed the application at the US Patent and Trademark Office (USPTO) and asked it to revoke the applied-for patent on the grounds of existing prior art. The patent was revoked in 1997 after the USPTO said it was not novel.

The other case centred on the Azadirachta indica plant, also known as neem. In 1995, the European Patent Office (EPO) granted a patent directed to a method of treating fungi using the plant to the US Department of Agriculture and chemical conglomerate Grace.

In 2000, the EPO revoked the patent and despite an appeal against the decision the patent was finally revoked in 2005.

Rutt says although these success stories exist, going a step further and giving protection to a certain group of people or a community may not be as successful.

“To ascribe a knowledge or method to a random group of people who have some sort of claim feels like a bit of a mess.

“It’s difficult when you are talking about what is essentially hearsay. If you look at the dock leaf, for example, most people know it as a cure for a stinging nettle rash but it’s not in a book.”

He adds that although WIPO has been making efforts to form “some sort of protection”, the organisation and other government agencies could be seen as “paying lip service”.

“People are very conscious that large parts of the less developed world do not benefit from IP as much as the developed world. It’s an attempt to address the balance and show them that IP can be good for them.”

Dutt explains that although there are certain provisions that seek to protect traditional knowledge in India, there is a lack of concrete legislation.

So far only one state (Kerala, in 2008) has outlined plans to recognise traditional knowledge as a “property right”. But she adds that individual state rules would not be able to be used at a national government level.

Obviousness, not origin

Rutt argues there is also a problem on a biodiversity level.

Pointing to Brazil, which he describes as critical of patents but rich in biodiversity, he says: “I know Brazil asks you to identify if any invention makes use of that heritage.

“Again I still think that the invention flows from whoever isolates, adapts and makes use of such material. The barrier to patentability should be obviousness, not its origin.”

Dutt says that the potential impact of enabling communities to profit from their knowledge and know-how remains to be seen.

“Unless serious negotiations and talks go on, it’s just political at this stage,” she adds.

It’s true that you often see high stakes litigation accompanying patent and trademark disputes, usually in the Western world. Multinationals, including many of the world’s pharmaceutical companies, are able to profit from IP. However, while there are examples of knowledge that is based on thousand-year-old traditions having knocked out patent applications, those with the knowledge are unable to promote and profit from it. But with talks at WIPO currently stalled, concrete legislation appears a long way off.