In the recent past, CSIR -TKDL (Traditional knowledge digital library) has gone on an overdrive touting several sensational claims. This post aims to evaluate the veracity of these claims and also examine whether the investment involved in the TKDL effort is actually worthwhile. In fact, our friends at IP Kat particularly Darren Smyth and Tufty the Cat got the debate started and have written a couple of posts regarding this. You can read these posts here and here.
Image from here
CSIR – TKDL self-proclaimed “milestones”
In the first instance, a European patent application EP2689806 claimed an oral composition comprising: an extract from Myristica fragrans (Nutmeg extract). CSIR TKDL (enthusiastically) filed third party observations objecting to the patent claims and citing several TKDL references in support. In response to the examiner’s search opinion, the applicant first tried amending the claims then finally abandoned the patent. The Indian government then came out with a press release stating that “India had foiled an attempt by consumer goods giant Colgate-Palmolive to patent a mouthwash formula containing herb extract by citing ancient texts that show it was traditionally used in ancient medicinal practices.” The prosecution history reveals that the examiner primarily relied on a prior US patent application to reject the EP patent claims. However the examiner did in fact find the TKDL citations to be relevant too. So I don’t quite agree with the Tufty the Cat’s opinion that “the recent claim by the Indian Government is not just a bit exaggerated, but completely false.”
In the second instance, another patent application EP2361602 the first claim claimed a method of treating hair i.e. specific sequence of applying certain chemicals onto hair. The dependent claim made specific reference to the chemicals claimed in claim 1 and also stated that some chemicals can be used in combination with certain conventional herbal agents (curcumin, pine bark extract, green tea) for treating hair. As one could imagine, TKDL acting as a caped crusader jumped in to foil yet another attempt by a “diabolical” foreign MNC to patent traditional knowledge! While the TKDL citations were taken into account by the examiner, it did not play an instrumental part in the prior art rejections and subsequent abandonment of the patent. Moreover these EP patent claims can hardly be construed as patenting of turmeric and pine bark extract per se. Further the examination on this patent application is still in progress. So the Government’s press release stating that“ India once again has been successful in protecting its traditional knowledge by preventing an attempt made by Europe’s Leading Dermaceutical Laboratory-Pangaea Laboratories Limited, to take patent on a medicinal composition containing turmeric, pine bark and green tea for treating hair loss” is a hyperbole and a bit premature.
Swaraj brought to my attention another completely bizarre TOI news report where CSIR- TKDL claimed that, “It has been observed that several patents have been issued in the West for various yoga techniques. Many have copyright on those.” A cursory search at the USPTO database revealed several patents for yoga accessories such as specialized yoga mats, yoga towels and even techniques to videograph/record a particular yoga class session. However I could not find any patents claiming the “Yoga posture” itself.
In the same article, I was dismayed to read that the Government is spending its resources and has shortlisted over 1500 asanas and videographed over 250, classifying them as “traditional knowledge” of the country. Further the article states that “this move will help thwart attempts by foreign MNC’s and individuals to get patents and trademark on ancient yoga techniques”
TKDL –is this effort meaningful and worthwhile?
It is important to consider whether the time and resources spent on TKDL is worthwhile. I believe that the TKDL was born out of an effort to index and digitize methods and compositions which have been in use over a period of several years, but haven’t been published anywhere or aren’t accessible readily.
The TKDL effort would have probably made sense and was a good tool to invalidate patents in pre –AIA(America invents act) era wherein, United States followed a system of relative novelty and public use/sale in a foreign country before the date of invention was NOT considered invalidating prior use.
However with the advent of AIA, United States has adopted the concept of absolute novelty prior public use/sale anywhere in the world before the effective filing date is considered invalidating prior use. Post AIA, US and EU both follow the concept of absolute novelty and the inventions indexed by TKDL would fall within the definition of prior art and preclude patentability. Additionally after the Myriad gene patent case and Mayo vs. Promethus, the USPTO issued guidelines which pretty much bar anyone from patenting a naturally occurring plant extract/chemical. Considering all this, I wonder whether the traditional knowledge digital library is useful for challenging patents as claimed.
One should probably consider filing an RTI to find out how much the TKDL initiative costs. The government is spending significant resources trying to maintain a “traditional knowledge “database, actively monitoring patent applications filed all over the world and filing invalidation actions/ oppositions against patent applications worldwide. While other countries like China and Korea also maintain a traditional knowledge database, I haven’t seen them investing time and money in challenging frivolous patents filed worldwide.
Further, as Prashant has noted in several of his previous posts the secret and closed nature of the TK database prevent it from being utilized as a meaningful resource for other research purposes.
I welcome our reader’s comments and thoughts regarding this. Do you think the Indian Government’s TKDL is a meaningful exercise worth the taxpayer’s money?