A Milestone with Caveats: Landmark Treaty on IPR and Indigenous Rights
Since 1999, the movement to protect Indigenous communities IP rights has navigated a complex landscape, ultimately yielding a groundbreaking outcome. After nearly 25 years, at the Diplomatic Conference to Conclude an International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources, the WIPO adopted a landmark Treaty On Intellectual Property, Genetic Resources, And Associated Traditional Knowledge in May 2024.
The treaty mandates that whenever there is a claimed invention on genetic resources, applicants will have to disclose the country of origin of the genetic resources. Furthermore, in cases where the patent is based on traditional knowledge, applicants must also disclose the Indigenous People who provided the traditional knowledge. The Treaty’s objective is to optimize the patent system’s quality, transparency, and effectiveness concerning genetic resources and associated traditional knowledge, thereby preventing the misappropriation of patents for non-innovative uses.
Significance for the Global South
For biodiversity-rich countries like India, the Treaty is highly significant. The Ministry of Commerce and Agriculture hailed the treaty as a “big win for India and the Global South.” The treaty recognizes the connection between local communities and their genetic resources (GR) and Alternative Traditional Knowledge (ATK) in the global IP community.
It is expected that the mandatory disclosure regime will enable countries, especially those party to the Convention on Biodiversity (CBD) or the Nagoya Protocol, to fulfil their obligations on equitable benefit sharing. The treaty is specifically designed to address the intricacies and conflicts arising within the intellectual property system, particularly with regards to patents related to traditional knowledge. Its primary objective is to ensure that provider countries of genetic resources and associated traditional knowledge receive fair compensation and rightful recognition.
This Treaty would play a vital role in promoting sustainable development, fostering innovation, and ensuring equitable benefits for Indigenous communities, while also upholding ethical research standards and clarifying patent application processes related to genetic resources and traditional knowledge.
Case of the Turmeric Patent (1997, USPTO)
The famous turmeric case exemplifies the interplay between patent law and, Traditional Knowledge (TK).
In 1995, two US based Indians Suman K Das and Hari Har P. Cohly were granted a US 5401504 patent on “Use of Turmeric in wound healing” and the said patent was assigned to University of Mississippi Medical Center, USA. The Indian Council for Science and Industrial Research (CSIR) objected to the granted patent and provided USPTO with written proof of prior art, including an ancient Sanskrit text and a paper published in the Journal of the Indian Medical Association in 1953. The USPTO revoked the patent in 1997, stating that the claims were obvious and anticipated.
Protection of Traditional Knowledge in India
In the Indian legal context, Traditional Knowledge (TK) is accepted as a res communis (owned by the entire society). The Patents (Amendment) Act, 2005, requires patent applicants to disclose the origin of biological resources involved in their inventions. If the information is related to Traditional Knowledge (TK) , the Patent Office may refuse to grant the patent. Section 64 of India’s Patent Act takes a stricter stance, allowing the revocation of a patent for non-disclosure without offering the patentee an opportunity to rectify the omission. Furthermore, it does not require the challenger to prove fraudulent intent or conduct by the patentee.
Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge gives enhanced protection to India’s genetic resources and traditional knowledge. While these resources are well-protected within, India, they can be misused or misappropriated in other countries that lack strict disclosure regulations.
The Government of India has established the Traditional Knowledge Digital Library (TKDL), a joint project with the Council for Scientific and Industrial Research (CSIR) and the Ministry of AYUSH. The Traditional Knowledge Digital Library (TKDL) collects traditional knowledge from across India and stores them into a single repository, accessible in different languages and formats.
Concerns and Criticisms
The treaty has faced criticism for not effectively tackling the issue of biopiracy of genetic resources and associated traditional knowledge using patents. One major concern is that the treaty undermines the ability of countries to take action. Article 5 of the Treaty limits the freedom of countries to revoke patents in case of failure to disclose information. As per the treaty, a contracting party cannot revoke, invalidate, or render a patent unenforceable based solely on an applicant’s failure to disclose, unless there is evidence of fraudulent intent with regard to such disclosure.
India’s patent regime, as governed by the Indian Patents Act and the Biological Diversity Act, 2002, provides robust protection for genetic resources (GRs) and associated traditional knowledge (ATK). However, the implementation of the Treaty may lead to conflicts with the existing Indian regulations, particularly regarding retroactive cancellation of patents and disclosure requirements. Critics argue that the treaty could undermine the existing benefit-sharing regime and fail to create an effective disclosure regime. This could inadvertently legitimize biopiracy. Nevertheless, the celebrated treaty is a much-needed step in the right direction towards better protection of biodiversity and traditional knowledge on a global scale. Although India is yet to ratify the treaty, it is anticipated that the Government of India will consider ratification in the near future, given the treaty’s significance in safeguarding Biological Diversity (BD) and Traditional Knowledge (TK).
By Faseela
References:
https://pib.gov.in/PressReleaseIframePage.aspx?PRID=2021716
https://infogm.org/en/wipo-opens-more-widely-the-door-to-biopiracy/
https://ssrana.in/articles/nature-of-ipr-protection-given-by-law-in-turmeric-case /
https://www.wipo.int/edocs/mdocs/mdocs/en/gratk_dc/gratk_dc_exsum.pdf
