In 1995, two Non-Resident Indians were granted a patent on “use of turmeric in wound healing” in the U.S. Now, in India we all know of the remedial properties of turmeric and as Indian children we have all gone through the sting of turmeric on our post-frolic wounds. On the basis of this well known fact, it was argued by the Indian Council of Scientific and Industrial Research that in India, turmeric has been used for centuries and its healing properties are well known. The argument relied on several ancient Sanskrit and Vedic texts. The patent was retracted.
Therefore, any knowledge that has been passed on from generation to generation needs to be protected. As such knowledge is often a cultural identity for such communities. In this article we shall understand why “Traditional Knowledge” is not patentable and whether the Indian laws protect the same in anyway.
Before we understand what traditional knowledge is and why it is not patentable, let us first delve into the meaning of patentability.
Patent means a patent for any invention granted under this The Patents Act, 1970.[Section 2(1)(m) of The Patents Act, 1970]. From this definition it is apparent that a patent can be granted only for an invention. In other words only an “invention” is patentable. So what is an invention?
An invention is something that involves an inventive step. An inventive step is that element of the invention that makes the invention novel and non-obvious. Simply put, for anything to be patentable it needs to be new and not obvious. But to whom should it be not obvious?
It should be not obvious to a ‘person skilled in the art’ [Sec 2(1)(ja)]. A person skilled in the art is a person whose mind has been tutored in the relevant art and is a person who has been presumed to have knowledge of all the relevant material with regard to that art. So after having such skills and knowledge if an invention would have been obvious this person then such an art is not patentable.
Traditional knowledge is primarily not patentable because it is something that is already known. This has been illustrated in greater detail below.
Now, an invention that is in effect traditional knowledge or which is an aggregation or duplication of known properties of traditionally known properties of traditionally known component or components is not an invention.[Section 3(p)] In other words, any invention that does not add anything new and non-obvious to something that has been already known in the form of traditional knowledge is not a ‘new invention’ and hence cannot be patented.
So, since the aforementioned criteria of patentability, that is, novelty and non-obviousness are not met in case of traditional knowledge, it is not patentable. But this does not mean that any invention that is based on such traditional knowledge in not patentable.
In the case of Badische Anillin & Soda Fabrik v Cochrane et al, a patent was granted for the process of making Anthracene. Alizarine is a natural dye found in the roots of the Madder plant and the substance and its properties had been known for a long time in the art of colouring. Anthracene is a product made out of coal-tar which in effect has similar properties, uses and chemical composition as Alizarine. The US Supreme Court said that a man made product which in effect is a traditional knowledge is not patentable. But a product based on traditional knowledge may be patentable provided it meets the requirements of novelty, non-obviousness and utility.
onsider the example of turmeric that has been illustrated earlier. The patent was sought on turmeric as a healing agent, which is traditional knowledge. Had the patent been on a novel product made through a novel process, it would have been patentable even though it might have a similar chemical composition and properties as turmeric.
Traditional knowledge is passed on from generation to generation and is usually not in written form. In order to protect such knowledge which marks the identity of a community the Indian Patents Act, 1970 under Section 3(p) makes any invention that is in effect traditional knowledge not patentable.
Anant Raje, Student
National Law Institute University, Bhopal.
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]