Looking at Traditional Knowledge and Patents: The MHC recently upheld the Controller’s rejection of a patent application for being based on Panchagavya, a form of Traditional Knowledge. In this post, Vishno Sudheendra and Kevin Preji use this order to look into the scope of Section 3(p) with regard to non-medicinal inventions, and with an emphasis on the phrase “in effect traditional knowledge”. Vishno and Kevin are third year law students at the NLSIU, Bangalore. Their previous posts can be accessed here and here.
Traditional Knowledge in Patents: Need for Clarity and Interpretation
By Vishno Sudheendra and Kevin Preji
The MHC in a recent judgment, in M/s.The Zero Brand Zone Pvt. Ltd. v. The Controller of Patents & Designs, rejected a patent application for a lamp based on Panchagavya (cow milk, cow ghee, cow butter, cow curd, cow dung and cow urine) citing that it was barred by Section 3(p) of the Indian Patents Act, 1970 (“the Act”) for being traditional knowledge (“TK”). In this piece, we shall discuss the aspects of the judgment dealing with traditional knowledge and segue into a broader discussion of Section 3(p) and the prohibition patentability of traditional knowledge which requires more clarity and guidelines.
The Judgment
M/s.The Zero Brand Zone Pvt. Ltd. appealed against the order rejecting their patent application for an “eco-friendly lamp made up of a composition based on Panchagavya with the combination of leaves used in traditional herbal medicine” (Para 1).
The Court observed that the object of S.3(p) of the Act is to prevent the monopolisation of TK including by aggregating the known properties of traditionally known components (Para 10). It further observed that TK is not defined in the Act and proceeded to rely on the definitions provided by WIPO and UNESCO (Para 10).
For the readers’ convenience, the following are the definitions:
WIPO: “Traditional knowledge (TK) is 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.”
UNESCO: “Knowledge, innovations and practices of indigenous and local communities around the world. Developed from experience gained over the centuries and adapted to the local culture and environment, traditional knowledge is transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, local language and agricultural practices, including the development of plant species and animal breeds. Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture, forestry and environmental management in general”
The Court noted that “traditional knowledge (is) derived from centuries of lived experience, takes many forms and is passed on from one generation to the next. Such knowledge is commonly owned by the communities possessing the knowledge. Because of such community ownership, the legislature denies exclusive monopoly rights to inventions incorporating traditional knowledge” (Para 10).
The Court after defining TK proceeds to discuss S.3(p) of the Act and notes that the provision defensively protects TK by excluding inventions that are “in effect” TK to prevent circumvention of the provision (Para 11).
The Court proceeds to the merits of the application and notes that the products used in the lamp have been used traditionally in India, but the Court does not cite the Traditional Knowledge Digital Library or any other authority on its determination (Para 12). It considers whether the known properties of these products have been aggregated in the claimed invention (Para 12). The Court notes that since the lamp contains one of the products (cow dung) whose known characteristic is its use as fuel, the claimed invention would fall within Section 3(p) and notes that this conclusion by itself is sufficient to reject the patent application (Para 12).
Analysis
Ambiguities in the Definition of TK
The definition of TK is neither provided in the Act nor was it interpreted in any judgment (as noted here and here, one of the main problems with TK was it being undefined). The MHC, in one of the first judgments on TK, provided some clarity on the definition of TK by relying on the definitions by WIPO and UNESCO. However, the definition by WIPO, and the one which the judgment formulates after considering both definitions, carries a problem with the timeline as to how old should a product/practice be to form part of TK and there persists problems with the extent of pervasiveness of certain a product/practice to be declared as TK (What if a product/practice is centuries old but known only by a select set of people in the community, or what if it is known by the whole community in a short timeline?). Though providing judicial legitimacy to the definitions by WIPO and UNESCO is a step towards providing clarity to the definition of TK, further nuanced analysis is required especially from the perspective of examination of patent applications which seek to innovate on TK.
Is There Scope for Innovation with Section 3(p) in Place?
Does Section 3(p) completely stifle innovation? Section 3(p) prohibits granting patents based on the claimed invention/process containing TK directly or in effect. This provision is worded broadly and lacks clear judicial interpretation. However, the MHC in this judgment noted that the intention of Section 3(p) is not to stifle all inventions based on TK. It holds that patents may be granted to those inventions if they can establish that the product/process “can no longer be described as being, in effect, traditional knowledge” (Para 10). The problems with the term “in effect” would be addressed in the subsequent sections.
Problems With “in effect” as Used in Section 3(p)
There is no clarity on the phrase “in effect” used in Section 3(p) and lacks judicial interpretation. The judgment merely notes that the phrase “in effect” is used to prevent circumventing Section 3(p). Does using one or more traditionally known substances or properties of the same ipso facto make it TK in effect? Does using newly discovered properties of TK make it TK in effect? What are the standards of aggregation of properties of traditionally known substances? These questions lack clarity and there are no tests or parameters to assess the same.
In absence of any authoritative judicial pronouncement, it may be argued that the term “in effect” as used in Section 3(p) can be interpreted on similar terms with Section 3(k), 3(c), 3(d) or 3(e) which restrict patents on “computer programme per se” or “mere discovery” or “mere admixture”. These terms can be used to interpret “in effect” while using the broader scheme of restricting obvious knowledge or prior art from being patented.
Patent Examination Guidelines Restricted to Medicinal TK
Given the lack of clarity, tests and parameters for assessing the applicability of this section how are these patents examined? The Manual of Patent Office Practice and Procedure, 2019 should be referred to for clarity on examination. The said manual merely notes that “Traditional Knowledge, being knowledge already existing, is not patentable” and the same should be assessed using Traditional Knowledge Digital Library and other resources (Patent Manual, 09.03.05.15, Page 98-99). Further, the Guidelines for Processing of Patent Applications relating to Traditional Knowledge and Biological Material provide a few guiding principles. However, these guiding principles restrict themselves to plants and medicinal TK but no guidelines are available about those aspects which fall outside the purview of plants and medicinal TK (for example: like that of the Panchagavya lamp).
The discussion on patenting traditional knowledge, in the previous sections merits a look at the Parliament’s intention behind Section 3(p).
What was the Parliament’s Intention Behind Section 3(p) and having a Traditional Knowledge Digital Library?
A copy of the discussions with relevant extracts, on patents and traditional knowledge, conducted in the Rajya Sabha and the Lok Sabha along with other reports has been embedded below for interested readers to take a look at. These discussion indicate that the legislators emphasised on “protecting” TK.
The legislators sought that no foreigner take “advantage” (biopiracy) of Indian TK [Shri Kharabela Swain on page 15 of Discussion on the Patents (Amendment) Bill, 2002 (Bill passed)]. They also had apprehensions of foreign patents taking effect in India and depriving Indians of their TK (page 14 of the discussion), however, such apprehensions of foreign patents taking effect in India are baseless since patents are territorial in nature, and do not take effect in a country unless the application is approved by the said country. Shri Mani Shankar Aiyar’s discussions highlight the need to acknowledge the non-patentability of TK to prevent misuse and exploitation under the evolving TRIPS framework (page 9 of the discussion). Overall, the legislators had a strong sentiment that the Indian TK should not be exploited by foreigners.
These discussions indicate that restrictions on patenting TK were concerned with a “national honor project” (as also observed by Prashant Reddy in an NPR podcast on Mashelkar’s patent war over turmeric, transcripts can be accessed here). Prashant Reddy also questions the idea of having TKDL and the Indian government’s interference in preventing TK patents since the market forces are enough to do so (here). He argues that when an entity has a TK patent and uses it for commercial gains, the competitors or other players in the market seeking to get similar commercial gains would oppose such a patent based on it being part of prior art or traditional knowledge and thus the patent would be revoked (here). He says that these competitors would do their research in order to oppose the patent in order to capitalise on such knowledge to get commercial gains thus making the idea of having TKDL for patent examiners redundant (here).
Conclusion & Way Forward
Section 3(p) of the Patents Act aims to protect TK from biopiracy while allowing room for patenting genuine innovation. This judgment is a step towards providing clarity on the definition of TK which was hitherto undefined in the Patents Act and in judicial precedents. However, the ambiguity of the term “in effect” and lack of clear guidelines to examine TK patents, especially non-medicinal TK patents, present challenges. Therefore, there is a need to provide nuanced, comprehensive and clear guidelines, and judicial interpretation, to clearly mark the contours of patentability of innovative TK.
We thank Swaraj and Praharsh for their valuable inputs.
Excerpts of the Parliamentary Debates :-