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"Galvanize Legal and Political Bodies and Keep Pace on Patents: Basmati Exhorts Scientists - Part III"

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In the third part of this article, let us realize the importance of digital documentation on our traditional knowledge, patenting our indigenous varieties, formal training in patent related issues, and the role of scientists.

Digital Documentation of Traditional Knowledge

People are unaware of what is involved in the challenge of a patent. One can challenge a patent only if you have substantial data. We had to collect evidence, back it with the germplasm collection, evaluate the grain characteristics.

Dr Suman Sahai of the gene campaign feels that ICAR had no data to fight RiceTec's claims on the novelty of its strains. No data exists listing the characteristics of the highly prized basmati strains. There is no information on the distinguishing features of basmati varieties, their growing characteristics and qualities of grains. However, after turmeric and neem victory, the country took a hat trick in basmati case, as no other country has been able to win like this in USPTO. This was made possible because of documentary evidences that we put together in the last two years based on the information available. Thus, it is very clear that documentation of traditional knowledge is paramount to protect the nation's interest.

In the face of the Indian challenge, Rice Tec has withdrawn most of its original 20 claims. The case is, therefore, a good example of how developing countries can defend their property, putting adequate documented information at the disposal of patent offices in the developed world. "This is an important case because it shows growing sophistication in the Indian response to patent battles. In haldi (turmeric) case we challenged all the claims. But here we focused only on three and in the end thereby knocked out Rice Tec's entire case'' says R A Mashelkar, the Director-General of the Council for Scientific and Industrial Research (CSIR).

International Patent Classification System

Turmeric, its use in wound healing, was the first fight the Third World took on, and won. Turmeric was just a starter. It opened up opportunities. It gave us confidence. One fallout was understanding the importance of documentation, in a way the rest of the world could accept. Two, countries like America woke up to ground-level problems. Our knowledge is not codified. The US office gets 500,000 patent applications a year and has no option other than an electronic search. Windows have been opened establishing the legitimacy of traditional knowledge. The international patent community has accepted this. This has important ramifications. Subsequently, Dr RA Mashelkar, as chairman of the standing committee on IT in the World Intellectual Property Organisation took up the issue and argued that traditional knowledge should be considered on par with industrial property systems. For the US patent office, the problem was that traditional knowledge lay in books or in the head. It was not accessible. It was not available in the International Patent Classification System, used by patent examiners around the world. This is when the idea of a traditional knowledge digital library came.

Of over 100,000 sub-groups in the international classification system, there is only one, currently, on traditional medicines. Once the library and our Traditional Knowledge Resource Classification system (TKRC) are in place, we will have as many as 5,000 entries on indigenous medicine. The project has started early this year with Rs 1.4 crore funded by the Union government. The project began with medicine, the most contentious. This would make the connection between our Sanskrit shlokas and the patent examiner. Translated into English, a language they can understand, it will go into the digital library, linked to the international patent classification system through TKRC. Experts in intellectual property, IT, indigenous systems of medicine and scientists work together on this important assignment. It is important because the indigenous systems talk of symptoms whereas the West talks of disease.

.In order to improve patent awareness and build our capacity in IPR, five chairs have been created. Of these, two IPR chairs, at the Pune and Allahabad universities, are being funded by CSIR. The Bangalore Law School isWorld Agricultural Forum (WAF) coordinator in India Madan Diwan explained that had India recorded all its varieties of agro, medicinal and herbal products under a biodiversity Act it could have at least got royalties on the ones used by companies abroad to develop new products. Process patents were not granted if they affected the natural wealth of a country but we did not have the database to present our case, he added. Citing example he said foreign companies had used castor to develop toothpaste, applications relating to hair and skin, fish yield and cosmetics but India did not have any data to accuse them of bio-piracy. At the same time India had not done sufficient industrial research to develop new products from their own bio-diverse wealth in order to get more process patents.

Indian agencies had filed only 536 patents with the USPTO since 1996 which was too less if compared with the vast traditional plant wealth of the country. Meanwhile, the transnational companies had acquired herbal patents including Chesebrough (11), Ambi Incorporated and Procter and Gamble (08 each) and their applications were for a wide range of disorders relating to digestion, respiration, psychiatry and inflammation. In agri-products while India did not have the technology to process its own wealth, Lion Corporation had patented cumin as blood flow promoter to be used in drugs and cosmetics. If this state of affairs continues, it is a safe bet that the west will piggyback to market leadership on more and more cherished Indian products. However, 21st century has made origin secondary to destination. We watch helplessly, as one by one, indigenous Indian products and processes are appropriated by market-savvy developed countries as we do not have documents to challenge the patents based on India's Bio-Resources. ....more

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