JNC1361 ESSENCE OF INDIAN TRADITIONAL KNOWLEDGE

UNIT II PROTECTION OF TRADITIONAL KNOWLEDGE

The need for protecting traditional knowledge Significance of TK Protection, value of TK
in global economy, Role of Government to harness TK.

Traditional Knowledge
Traditional Knowledge (TK) is used to refer to the content or substance of knowledge
that is the result of intellectual activity and insight in a traditional context, and includes the
know-how, skills, innovations, practices and learning that form part of traditional knowledge
systems, and knowledge that is embodied in the traditional lifestyle of a community or people,
or is contained in codified knowledge systems passed between generations. It is not limited to
any specific technical field, and may include agricultural, environmental and medicinal
knowledge, and knowledge associated with genetic resources.
However, WIPO (World Intellectual Property Organization) Secretariat besides using
the above definition also has the following all-encompassing and working concept of
traditional knowledge:
Definition for Traditional Knowledge by WIPO
Traditional Knowledge refers to tradition-based literary, artistic, or scientific works;
performances; inventions; scientific discoveries; designs; marks, names, and symbols;
undisclosed information; and all other tradition-based innovations and creations resulting from
intellectual activity in the industrial, scientific, literary or artistic fields.
“Tradition-based” refers to knowledge systems, creations, innovations and cultural
expressions which have generally been transmitted from generation to generation; are generally
regarded as pertaining to a particular people or its territory; and, are constantly evolving in
response to a changing environment.
Categories of traditional knowledge could include: agricultural knowledge; scientific
knowledge; technical knowledge; ecological knowledge; medicinal knowledge, including
related medicines and remedies; biodiversity-related knowledge.
Examples: * Yoga * Application of turmeric, neem, Jamun, karela etc.
Traditional knowledge is rooted in Indigenous lifeways and relationships with the
environment and is valuable not only to Indigenous Peoples, but to all societies. It must be
protected and supported and emphasis must be placed in transmitting Indigenous knowledge
to future generations.

THE NEED FOR PROTECTING TRADITIONAL KNOWLEDGE

Need to protect traditional knowledge have increased with changing time, especially in
order to stop unauthorized and commercial misuse of such knowledge. It is important to protect
the indigenous people from such loss and also help them to preserve such ancient practices.
Significance of Traditional Knowledge (Tk)
Traditional Knowledge is a part of the cultural identities of indigenous and local
communities. This knowledge system has significance for their future well-being and
sustainable development and is a key for their cultural vitality. TK is integral to the identity of
most local communities. It is a key constituent of a community's social and physical
environment and, as such, its preservation is of paramount importance. It is integrated in their
ways of living and has become holistic, thus is an inseparable component of the communities.
The protection of this knowledge system hence, is vital for the very existence of the indigenous
and local communities. Hence, Traditional Knowledge has been receiving increasing attention
in international agenda in recent times.
Traditional Knowledge system has an equally significant role to play in the
communities in many countries. In fact, livelihood of many people in these regions is
dependent on the use of Traditional Knowledge existing in their countries. It is particularly true
with respect to the health care systems. The World Health Organization (WHO) has stated that
80 per cent of the world’s population depends on traditional medicine for its primary health
care and that Traditional Knowledge is indispensable for its survival. This is due to the fact
that most of the people in these regions cannot afford modern medicines and also that these
medicines are comparatively safer compared to the modern drugs. Some of the traditional
systems of medicine practiced in the developing world include Ayurveda, Unani, Siddha,
Chinese, Tibetian, Homoeopathy, Yoga, Meditation, Acupuncture, Acupressure, etc. The
following Table provides percentage users of traditional health care practices both in
developing and developed world.
Populations using traditional medicine for primary health care include Ethiopia, 90%;
India, 70%; Rwanda, 70%; Tanzania, 60% and Uganda, 60%. Populations in developed
countries who have used complementary and alternative medicine at least once include Canada,
70%; Australia, 48%; France, 49%; USA, 42% and Belgium, 31%. With this statistics, it is
very evident that TK plays a significant role even in modern days and its protection is
inevitable.
The traditional knowledge has to be protected. The main purpose for the protection of
traditional knowledge is to guard against misappropriation and misuse, especially by third
parties, preservation of genetic resources and cultural goods, and protection against unfair
competition. This will in turn ensure access as well as benefit sharing
Two types of Protection
The role of intellectual property (IP) systems in relation to traditional knowledge (TK),
and how to preserve, protect and equitably make use of TK, has recently received increasing
attention in a range of international policy discussions. These address matters as diverse as
food and agriculture, the environment, notably the conservation of biological diversity, health,
including traditional medicines, human rights and Indigenous issues and aspects of trade and
economic development. While the policy issues concerning TK are broad and diverse, the IP
issues take two key directions:
 Defensive protection
Defensive protection aims to stop people outside the community from acquiring
intellectual property rights over traditional knowledge.
Defensive protection of TK prevents others from seeking IPR to one’s TK. These are
measures which ensure that IP rights over TK are not given to parties other than the customary
TK holders. These measures include the amendment of WIPOadministered patent systems (the
International Patent Classification system and the Patent Cooperation Treaty Minimum
Documentation). Some countries and communities are also developing TK databases that may
be used as evidence of prior art to defeat a claim to a patent on such TK;
India, for example, has compiled a searchable database of traditional medicine that can
be used as evidence of prior art by patent examiners when assessing patent applications. This
followed a well-known case in which the US Patent and Trademark Office granted a patent
(later revoked) for the use of turmeric to treat wounds, a property well known to traditional
communities in India and documented in ancient Sanskrit texts
 Positive protection
Positive protect`tion is the granting of rights that empower communities to promote their
traditional knowledge, control its uses and benefit from its commercial exploitation. Some uses
of traditional knowledge can be protected through the existing intellectual property system, and
a number of countries have also developed specific legislation.
Positive protection of TK establishing IPR to one’s TK, with the resulting possibility of
preventing others for using the TK without permission. This is creation of positive rights in TK
that empower TK holders to protect and promote 15 Protection of Traditional Knowledge their
TK. In some countries, sui generis legislation has been developed specifically to address the
positive protection of TK. Providers and users may also enter into contractual agreements
and/or use existing IP systems of protection. However, any specific protection afforded under
national law may not hold for other countries, one reason why many indigenous and local
communities as well as governments are pressing for an international legal instrument.
The Need for Protecting Traditional Knowledge
- prevent the misappropriation of TK
- ensure PIC and benefit sharing
- ensuring the distribution of benefits
- conservation of biodiversity
- rewarding innovations based on TK
Apart from treaties and emerging international norms, which imply both legal and
moral imperatives for protecting TK, there are a number of reasons why developing countries
want to protect their TK.
Improvement of Livelihoods of TK Holders
TK is a valuable asset first and foremost to indigenous and local communities that
depend on TK for their livelihoods and well being, as well as for enabling them to sustainably
manage and exploit their local ecosystems (e.g. through sustainable lowinput agriculture).
Benefits to National Economy
TK is used as an input into modern industries such as pharmaceuticals, botanical
medicines, cosmetics and toiletries, agriculture and biological pesticides. In most cases, firms
based in developed countries that can harness advanced scientific, technological and marketing
capabilities capture virtually all the value added in the products. This situation needs to be
addressed so that developing countries can capture much more of the value added.
Attempts have been made to estimate the contribution of TK, particularly biodiversity-
related TK, to modern industry and agriculture. For pharmaceuticals, the estimated market
value of plant-based medicines sold in Organisation for Economic Co-operation and
Development (OECD) countries in 1985 was US$ 43 billion (Principe 1989). Many of these
medicines would have used TK leads in their product development. This fact is supported by
the observations of distinguished pharmacognosist Norman Farnsworth that out of 119 plant-
based compounds used in medicine worldwide, 74 per cent had the same or related uses as the
medicinal plants from which they were derived. It is particularly difficult to estimate the
contribution of traditional crop varieties (land races) to the global economy. However, a study
on the use and value of land races for rice breeding in India estimated that rice land races
acquired from India and overseas contributed 5.6 per cent, or US$75 million. The global value
added to rice yields by use of land races can be estimated at US$400 million per year.
But accurately estimating the full value of TK in monetary terms is impossible, first
because TK is often an essential component in the development of other products, and second
because most TK-derived products never enter modern markets. In any case, a great deal of
TK is likely to have cultural or spiritual value that cannot be quantified in any monetary sense.
In short, it seems that protecting TK has the potential to improve the performance of
many developing-country economies by enabling greater commercial use of their biological
wealth and increasing exports of TK-related products. At the same time, it is important not to
overestimate the economic potential of TK.
Conservation of Environment
A large number of field studies have proved that the conservation ethic is a prevalent
feature of the subsistence and resource management practices of many present-day indigenous
or native people and traditional communities. Several academic studies on traditional
communities provide ample evidence that the protection of TK can provide significant
environmental benefits. For example, in may forest areas, members of traditional societies plant
forest gardens and manage the regeneration of bush fallows in ways that take advantage of
natural processes and mimic the biodiversity of natural forests.
Researchers are increasingly aware of the extent to which traditional natural resource
management can enhance biodiversity, and in this way have realized the extent of
anthropogenic landscapes even within “pristine” tropical forests. Much of the world’s crop
diversity is in the custody of farmers who follow age-old farming and land use practices in
ecologically complex agricultural systems, which enable the conservation of biodiversity.
These traditional communities maintain the centres of crop genetic diversity, which include the
traditional cultivars, or land races, that constitute an essential part of the world’s crop genetic
heritage and non-domesticated plant and animal species.
 SIGNIFICANCE OF TK PROTECTION
Biopiracy
Biopiracy is the misappropriation of TK for the purpose of seeking exclusive patent
ownership over that knowledge. The process through which the rights to genetic resources and
knowledge are “erased and assumed by those who have exploited indigenous knowledge and
biodiversity is termed as biopiracy.
Key Issues Surrounding Biopiracy
 Understanding the precise legal status of genetic resources and traditional knowledge,
 Understanding the exact boundaries of biopiracy in order to ensure more effective
measures to confront this phenomenon,
 At present, bioinformatics, proteomics, genetic engineering and synthetic biology,
among others, promote more subtle ways of misappropriation and illegal access to and
use of genetic
Prevention of Biopiracy
The term biopiracy was coined by the North American advocacy group Rural
Advancement Foundation International as part of a counter-attack strategy on behalf of
developing countries that had been accused by developed countries, particularly the United
States, of Intellectual piracy. It normally refers either to the unauthorized extraction of
biological resources and / or associated TK from developing countries, or to the patenting,
without compensation, of spurious inventions based on such knowledge or resources.
Problems have been experienced by indigenous people trying to protect their traditional
knowledge under intellectual property laws. Even the prohibitive costs of registering and
defending a patent or other intellectual property right may curtail effective protection. Within
the context of scientific progress, modern intellectual property laws have allowed the industries
particularly the pharmaceutical industries to monopolize the benefits derived from the use of
indigenous knowledge with disregard for their moral rights and material (financial) interests of
indigenous people themselves.
Many incompatibilities between TK and IPRs have begun to surface with the rapid
global acceptance of western concepts and standards for intellectual property. These
incompatibilities appear when ownership of TK is inappropriately claimed or TK is used by
individuals or corporations that belongs to local communities, primarily in developing
countries.
The codified traditional knowledge has also become an open treasure for
misappropriation. Since this knowledge exists in local languages and in format not
understandable to patent examiners, patents have been obtained on this knowledge. Several
examples are known where patents have been granted on applications, which are based on
codified traditional knowledge.
Some Examples of Biopiracy of Traditional Knowledge
Colgate Case
 Colgate, the world‟s largest producer of toothpaste, patented a tooth cleaning powder.
  American household goods giant was granted the patent in the U.S. in June for what it
claimed was a groundbreaking “red herbal dentifrice.”
 Indian activists claim that the patent is bogus because the ingredients - including clove
oil, camphor, black pepper and spearmint - have been used for the same purpose for
hundreds, “if not thousands,” of years on the subcontinent.
 However, its patent filing argues that the use of red iron oxide, which is less abrasive
than ingredients in traditional toothpaste, is new.
 According to Colgate the old recipe has become new, and through this “legal
contraption”, the American company intends not to pay royalties.
 India is in the process of creating 34 million web pages to help prevent the “biopiracy”
of its ancient folk remedies that document the techniques and claim them as Indian
property.
 The matter is pending before the USPTO.
Turmeric (Haldi) Case
 The rhizomes of turmeric are used as a spice for flavouring Indian cooking.
 It also has properties that make it an effective ingredient in medicines, cosmetics and
as a colour dye.
 As a medicine, it has been traditionally used for centuries to heal wounds and rashes.
 In 1995, two expatriate Indians at the University of Mississippi Medical Centre (Suman
K. Das and Hari Har P. Cohly) were granted a US patent (no.5,401,504) on use of
turmeric in wound healing.
 The Indian Council of Scientific & Industrial Research (CSIR) filed a re-examination
case with the USPTO challenging the patent on the grounds of prior art.
 CSIR argued that turmeric has been used for thousands of years for healing wounds and
rashes and therefore its medicinal use was not a novel invention.
 Their claim was supported by documentary evidence of traditional knowledge,
including ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian
Medical Association.
 Despite an appeal by the patent holders, the USPTO upheld the CSIR objections and
cancelled the patent.
 The turmeric case was a landmark judgment case as it was for the first time that a patent
based on the traditional knowledge of a developing country was successfully
challenged.
 The US Patent Office revoked this patent in 1997, after ascertaining that there was no
novelty; the findings by innovators having been known in India for centuries.
Neem
 Neem extracts can be used against hundreds of pests and fungal diseases that attack
 crops; the oil extracted from its seeds can be used to cure cold and flu; and mixed in
soap, it provides relief from malaria, skin diseases and even meningitis.
 In 1994, European Patent Office (EPO) granted a patent (EPO patent No.436257) to
the US Corporation W.R. Grace Company and US Department of Agriculture for a
method for controlling fungi on plants by the aid of hydrophobic extracted neem oil.
 In 1995 a group of international NGOs and representatives of Indian farmers filed legal
opposition against the patent.
 They submitted evidence that the fungicidal effect of extracts of neem seeds had been
known and used for centuries in Indian agriculture to protect crops, and thus was a prior
art and unpatentable.
 In 1999 the EPO determined that according to the evidence, all features of the present
claim have been disclosed to the public prior to the patent application and the patent
was not considered to involve an inventive step.
 The patent granted on neem was revoked by the EPO in March 2005.
Basmati Rice
 Rice Tec. Inc. had applied for registration of a mark TEXMATI before the UK Trade
Mark Registry. It was successfully opposed by Agricultural and Processed Food
Exports Authority (APEDA).
 One of the documents relied upon by Rice Tec as evidence in support of the registration
of the said mark was the US Patent 5,663,484 granted by US Patent Office to Rice Tec.
 This US utility patent had claimed a rice plant having characteristics similar to the
traditional Indian Basmati Rice lines and with the geographical delimitation covering
North, Central or South America or Caribbean Islands.
 The patent was granted to Rice Tec by the US PTO on September 2, 1997. It covered
20 claims covering not only novel rice plant but also various rice lines; resulting plants
and grains; seed deposit claims; method for selecting a rice plant for breeding and
propagation.
 Its claims 15-17 were for a rice grain having characteristics similar to those from Indian
Basmati rice lines.
 These claims would have come in the way of Indian exports to US, if legally enforced.
Evidence from the Indian Agricultural Research Institute (IARI) Bulletin was used
against claims 15-17.
 The evidence was backed up by the germplasm collection of Directorate of Rice
Research, Hyderabad since 1978.
 The various grain characteristics were evaluated by CFTRI scientists and accordingly
the claims 15-17 were contested on the basis of their reports.
 Eventually, a request for re-examination of this patent was filed on April 28, 2000.
 Soon after filing the re-examination request, Rice Tec chose to withdraw the contested
 claims.
Briefly, we can summarise the reasons for protecting TK as:
 Moral reason
o To fulfil moral obligations towards indigenous/ local communities.
 Legal reason
o To comply with international treaties and emerging norms (e.g. the CBD, the
Universal Declaration of Human Rights, the International Undertaking on Plant
Genetic Resources).
 Utilitarian reason
o For local economic, welfare (health and food security) and subsistence benefits;
o For national economic and welfare benefits
o For global economic and welfare benefits; and
o For improved sustainable management of biodiversity and conservation

VALUE OF TK IN GLOBAL ECONOMY

Traditional Knowledge (TK) plays an important role in the world economy because a
wide range of medicinal plants, herbal formulations, and products based on agriculture,
forestry, arts and crafts are traded internationally and have considerable economic value.
The national patent laws of most countries allow for third parties – any member of the
public – to file a submission questioning the novelty and non-obviousness of a patent
application before a patent is granted. There is a need, therefore, to ensure that patent
applications that wrongly claim rights in prior art are readily identifiable so that such “third
party observations (TPOs)” can be filed and made easily searchable. Global IP-watch
monitoring systems have an important role to play in enabling the identification of published
TK-related applications on which third parties – in accordance with the patent law of the
country concerned – may file observations.
To date, the submission of TPOs has proven the only cost-effective way of preventing
misappropriation of TK at the pre-grant stage. The TKDL database has enabled the submission
of TPOs that have resulted in the successful opposition of hundreds of patent applications filed
around the world. Without documenting and digitizing TK and making these databases easily
accessible to patent examiners operating in the major languages of commerce, this would not
have been possible.
The TKDL has an integrated global biopiracy watch system that allows monitoring of
patent applications related to Indian medicinal systems. It enables effective detection of
attempts to misappropriate this knowledge by third parties filing applications with patent
offices around the world. It means that immediate corrective action can be taken, and at zero
direct cost, to prevent biopiracy. India is the only country to date to have put such a system in
place.
Comparison of time and costs associated with post-grant opposition and pre-grant
opposition based on the submission of prior art evidence supported by TK documentation.
No. Methodology Post-grant Opposition Pre-grant Objections
& Process supported by a database such
as TKDL
1. Nature Opposing party is part of re-Objecting party can only file
examination process, can submit evidence as a third party and
counter documents and participate in cannot participate in the
re-examination and hearing process. examination process.
2. Cost Highly expensive and requires legal Inexpensive and does not require
assistance. legal support because prior art
evidence is available from the
TKDL.
3. Time period 4 – 13 years 3 – 20 weeks
4. Documentation Does not require extensive Requires extensive digital
documentation. documentation.
5. Patent Applicant can appeal invalidation ofPatent applicant cannot appeal as
the patent. the application is rejected at the
pre-grant stage.
 ROLE OF GOVERNMENT TO HARNESS TK
India has developed a database known as Traditional Knowledge Digital Library
(TKDL) with an objective of defensive protection of the codified traditional knowledge on
Indian Systems of medicine of our country. Before understanding the effort made by India, let
us understand about the structured classification of Traditional Knowledge. The government
has been successful in obtaining UNESCO recognition to traditional medicinal knowledge such
as Ayurveda, Yoga, Sowa Rigpa, Unani etc. This has allowed India to establish link with the
country of origin and prevent patenting by multinational pharma companies.
Structured Classification of TK
Any area of industrial application, which has to be examined by the Patent Offices
needs to have a structured classification basically for the retrieval of the data. For this reason
the International Patent Classification (IPC) exists which categorises the entire industrial
application related information qualifying for grant of patents into Sections, Classes,
Subclasses, Main Groups and Subgroups. The entire industrial application related information
qualifying for grant of patents have been divided into 69,000 Subgroups for the convenience
of patent examiners, so that the patent search and examination gets restricted to the documents
coming under the specified subgroups.
However, the TK lacked a structured classification, and the existing IPC just contained
a single Subgroup i.e., A61K 35/78 for entire information on TK. Hence, the search and
examination process by patent examiners becomes extremely difficult.
To address the above issue, Traditional Knowledge Digital Library (TKDL) classified
the entire TK related information in a modern system as per the format of IPC, into Sections,
Classes, Subclasses, Main Groups and Subgroups. This classification system evolved by India
is known as Traditional Knowledge Resource Classification (TKRC). TKRC has been
developed for Ayurveda, Unani and Siddha systems of medicine where about 8,000 subgroups
have been created for classifying the codified (published) TK information particularly with
respect Indian systems of medicine.
The novelty of the classification scheme was well recognised by the experts of the IPC
Union. WIPO constituted a Task Force to further study the possibility of linking and/or
integrating TKRC developed by India with IPC. Task Force consisted of United States Patent
Office, European Patent Office, China, Japan and India.
Subsequently, the Task Force recognised the need of having more detailed level of
classifications relating to medicinal plants and have created about 200 sub-groups which will
be included in IPC under A61K 36/00 instead of single sub-group on medicinal plants. The
TKRC developed by India will be linked with the IPC. This is likely to have significant impact
on the system of search and examination while granting patents in the area of traditional
knowledge whereby the possibilities of grant of wrong TK patents shall get significantly
reduced.
Traditional Knowledge Digital Library (TKDL)
The Government of India has prepared a Traditional Knowledge Digital Library
(TKDL) on TK about medicinal plants, to ward off incidence of piracy, containing 36,000
formulations used in Ayurveda, Unani, Siddha - Indian system of medicine, from 14 ancient
books. 1,60,000 have been further transcribed. Access to TKDL regulated through “Access
Agreement”, confidentiality to be maintained, TKDL information use is limited to patent
search and examination. Registers have limited utility.
India‟s TKDL is a collaborative project between the Council of Scientific and Industrial
Research (CSIR), and the Department of AYUSH, is a home-grown effort to ensure patent
offices around the world do not grant patents for applications founded on India‟s wealth of
age-old TK. Cases on wound healing properties of turmeric, and the antifungal properties of
neem acted as stimulants for the formation of TKDL.
Standing Committee on Information Technology (SCIT), World Intellectual Property
Organisation (WIPO) at the 3rd Plenary Session held at Geneva in June 1999 and attended by
170 member states of WIPO was held under the Chairmanship of Dr. R. A. Mashelkar, Director
General, CSIR, India. SCIT strategic plan for 21st century recognized the concern by WIPO
Member States regarding the granting of intellectual property rights due to a lack of traditional
knowledge being documented in the public domain. The SCIT suggested taking the initiative
by including activities in its work program to support WIPO Member States, in particular
developing countries in their creation of databases in the area of traditional knowledge
available in public domain so that prior art gets established.
An Approach Paper was prepared by India and was sent to SCIT in Dec.1999. In the
discussions by 170 member states of WIPO at Geneva, SCIT agreed to the India’s approach.
Mr. Robert Saifer, Director, International Liaison Staff, US Patent and Trademark
Office emphasised in August 1999 the need of creating more easily accessible nonpatent
literature databases that deal with traditional knowledge. He suggest doing this by documenting
TK with the help of the developing countries, capturing it electronically, and placing in the
appropriate classification within the IPC so that it can be more easily searched and retrieved.
This, in his opinion, would help prevent the patenting of turmeric, as well as karela, jamun,
brinjal and other traditionally used remedies.
TKDL Task Force was established in January, 2000 after the interdepartmental meeting
attended by Secretaries of Department of Industrial Policy & Promotions (DIPP), Department
of Indian Systems of Medicine & Homoeopathy (D/o ISM&H) and Department of Scientific
& Industrial Research (DSIR). The task force comprises of membership of Council of
Scientific and Industrial Research, NIC, Patent Office, Ayurveda Experts, Central Council of
Research in Ayurveda and Siddha, and Department of Indian Systems of medicine and
Homoeopathy (ISMH). The TKDL report along with TKRC was prepared in May 2000.
The main aim of TKDL is to bring the knowledge in public domain in international
languages to prevent the grant of wrong patents.
Traditional Knowledge Task Force created by the Department of AYUSH, Ministry of
Health and Family Welfare randomly studied selected 762 US patents, which were granted
under A61K 35/78 and other International Patent Classification (IPC) classes, having a direct
relationship with medicinal plants in terms of their full text. Out of these 762 patents, 374
(49%) patents were found to be based on traditional knowledge. 408 patents were granted by
USPTO during March, 2000 itself on several medicinal plants. A further study by a team of
experts of TKDL studied the USPTO, EPO and UKPO patent databases in respect of medicinal
plants (with respect to Unani system of medicine) in April, 2003 and found more than 15,000
patent references against 4896 references found in 2000, clearly demonstrating three-fold
increase.
The work on creation of TKDL began in October 2001. Initially the team of 12
Ayurveda Experts and 4 scientists started the work on transcription of Sanskrit Slokas into
TKRC. The complete team at present consists of 29 Ayurveda Experts, 5 Information
Technology (IT) Specialists, 2 Patent Examiners, 4 scientists and 3 Technical Officers.
TKDL (Ayurveda) has been created on the codified traditional knowledge on Indian
Systems of medicine and in the first phase information present in 14 Ayurvedic texts listed in
Indian Drugs and Cosmetics Act was taken. 36,000 formulations have been transcribed in
patent application format in five international languages, viz. English, French, German,
Spanish and Japanese. The images from the original texts that have been transcribed have also
been incorporated into the database. TKDL Ayurveda is presently being extended by inclusion
of additional formulations. TKDL is also being created for Unani System of Medicine for
77,000 formulations from 42 Unani texts, which are in Arabic, Persian and Urdu.
TKDL software with its associated classification system, i.e. TKRC converts verses
into multiple languages mentioned above. It may be noted that the software does not do
translitration, rather it does smart translation, where data abstracted once is converted into
several languages by using Unicode, Metadata methodology. Software also converts traditional
terminology into modern terminology, for example Kumari (local name) to Aloe vera,
Masurika (Sanskrit name of a disease) to small pox etc.
TKDL includes a search interface providing full text search and retrieval of traditional
knowledge information on IPC and Keywords in multiple languages. Traditional Knowledge
Classification shall be integral to TKDL database along with background on concepts and
definitions on Indian system of medicines, scientific basis of Indian system of medicines,
details on practitioners, hospitals and dispensaries.
TKDL database shall act as a bridge between ancient Sanskrit/Unani verses and a patent
Examiner at a global level, since the database will provide information on modern as well as
local names in a language and format understandable to patent Examiners. It is expected that
the gap on lack of prior art knowledge shall be minimized. The database has sufficient details
on definitions, principles, and concepts to minimize the possibility of minor/insignificant
modifications.
TKDL has been able to set international specifications and standards for setting up of
TK databases and registries based on TKDL specifications. This was presented at the at the 4th
Session of Intergovernmental Committee (IGC) of WIPO on Intellectual Property and Genetic
Resources, Traditional Knowledge and expression of folklore. The technical standards
presented by India were adopted by the Committee in the fifth session of the IGC held in 2003.
TKDL being a maiden effort has become a model for other countries for protecting their
TK from misappropriation. Countries like South Africa, regional organizations like SAARC
countries, African Regional Industrial Property Organization (ARIPO) have already been
interacting with India to build TKDL for their own region.
 Legal approaches for protection of traditional knowledge
Existing formulations Modifications/ Alternatives
supplements to existing
formulation
Customary law Codification/ national New intellectual property
recognition of customary law categorie
Intellectual property, rights: - Certificates of origin Access and benefit sharing/
- Patents - Traditional Knowledge biodiversity management
- Utility models Digital Library regulations with TK related
- Plant variety rights - Inclusion of Identifiability provisions
- Copyrights criteria in plant variety right
- Trademarks legislation
- Trade secrets
- Geographical indications
- Performers’ rights
Civil and common law
concepts, such as:
- Breach of confidence
- Privacy
- Unfair competition
- Trust funds
Contracts:
- know-how licenses
- Material transfer
agreements

Legal and policy measures for protecting traditional knowledge

Measures Examples and Models

Legislative – IPR  Kenya Industrial Property Act.
 Peru Regime of Protection of the Collective Knowledge of
Indigenous Peoples
 OAU African Model Legislation for the Protection of the
Rights of Local Communities, Farmers and Breeders, and for
the Regulation of Access to Biological Resources
 UNESCO/ WIPO Model Folklore Provisions
 Convention on Farmers and Breeders (Gene Campaign)
Community Intellectual Rights (TWN)
Legislative – non-IPR  Costa Rica Biodiversity Law
 Brazil Medida Provisósria no.2.052-1
 Andean Community Decision 391
 Philippine Indigenous Peoples Rights Act
Existing legal concepts  Unfair competition
and principles  Privacy
 Trust funds
 Confidentiality
 Passing off
Existing private legal  Aguaruna-Searle know-how licence
arrangements/ contracts  TBGRI-Arya Vaidya-Kani licence
Institutional reforms  Certificates of origin
 Traditional Knowledge Digital Library
 Ombudsman (complaint redressal mechanism
Existing legally non-  Voluntary agreements / codes of conduct
binding instruments
Local/ NGO initiatives  Community-controlled TK databases

SUMMARY
 Protection of TK against misuse or misappropriation raises deep policy questions and
practical challenges alike.
 The changing social environment, and the sense of historical dislocation, that currently
affect many communities may actually strengthen resolve to safeguard TK for benefit
of future generations.
 The challenge is to ensure that the intellectual and cultural contribution of traditional
communities is appropriately recognised.
 Protection of TK can be defensive or positive.
 Examples of defensive protection include Traditional Knowledge Digital Library,
which needs to be replicated by the developing countries which are rich in TK.
 The journals included under PCT minimum also provide defensive protection to the
knowledge contained therein.
 Positive protection can benefit from the core principles on protection of TK framed by
WIPO.
 It can be obtained through adapted or expanded conventional IP systems, or through
stand-alone sui-generis systems.