The current international system for protecting intellectual property was fashioned during the age of industrialization in the West and developed subsequently in line with the perceived needs of technologically advanced societies. However, in recent years, indigenous peoples, local communities, and governments, mainly in developing countries, have demanded equivalent protection for traditional knowledge system.
When community members innovate within the traditional knowledge framework, they may use the patent system to protect their innovations.
However, traditional knowledge as such – knowledge that has ancient roots and is often informal and oral – is not protected by conventional intellectual property systems. This has prompted some countries to develop their own sui generis (specific, special) systems for protecting traditional knowledge.
In 2000, WIPO members established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), and in 2009 they agreed to develop an international legal instrument (or instruments) that would give traditional knowledge, genetic resources and traditional cultural expressions (folklore) effective protection.
The Neem Case:
A classic case of bio-piracy by transnational corporations is that of the Neem tree in India. The patent for Neem was granted by the European Patent Office to the United States Department of Agriculture and the chemical multinational, W.R. Grace, in 1995. Since then, Dr. Shiva, along with the International Federation of Organic Agriculture Movement and the Green Party in European Parliament, had been opposing it.
In 2000, the European Patent Office revoked the patent but the victory was short-lived as the revocation was followed by an appeal. At the hearing, this appeal was dismissed, Dr. Shiva said. “We gave them evidence of farmers using this knowledge for a long time and also gave them information about the two scientists who had conducted research on Neem before the patent had been granted. During the hearing today, they dismissed the appeal and upheld the earlier revocation of the patent.”
Dr. Shiva — one of the three parties to oppose the patent — said: “It was pure and simple piracy. The oil from Neem has been used traditionally by farmers to prevent fungus. It was neither a novel idea nor was it invented. It is a major victory that the appeal has been finally dismissed.”
The Turmeric Case:
In 1995, two expatriate Indians at the University of Mississippi Medical Centre were granted U.S. Patent 5,401,504 on Use of Turmeric in Wound Healing. The claim covered “a method of promoting healing of a wound by administering turmeric to a patient afflicted with wound”. This patent also granted them the exclusive right to sell and distribute turmeric. Initially, this news was a disbelief and surprise by many people in India.
In 1996, The Council of Scientific & Industrial Research (CSIR), India, New Delhi requested the US Patent and Trademarks Office (USPTO) to revoke the patent on the grounds of existing of prior art. CSIR did not succeed in providing that many Indians already use turmeric for wound healing although turmeric was known to every Indian household for ages. Fortunately, it could provide documentary evidence of traditional knowledge including ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association. The patent was revoked in 1997, after ascertaining that there was no novelty.
The Basmati Rice Case
In late 1997, an American company RiceTec Inc, was granted a patent by the US patent office to call the aromatic rice grown outside India ‘Basmati’. RiceTec Inc, had been trying to enter the international Basmati market with brands like ‘Kasmati’ and ‘Texmati’ described as Basmati-type rice with minimal success. Basmati rice means the “queen of fragrance or the perfumed one.” This type of rice has been grown in the foothills of the Himalayas for thousands of years.
The law firm representing India in the dispute, Sagar and Suri, criticized the procedures for granting patents in the US claiming it is diametrically opposite to the one followed in India and Europe. According to them, India first examines a patent application, then widely publishes it for third parties to challenge, and only then grants the patent. However, the US keeps the patent application a closely guarded secret and grants it without allowing other parties to challenge it. After the patent has been granted, third parties are then allowed to petition against the patent as India is currently doing in the Basmati case. This criticism clearly illustrates the shortfalls in the patent process in the US that ultimately needs to be revised to prevent future cases like this from occurring.
RiceTec’s usage of the name Basmati for rice which was derived from Indian rice but not grown in India, and hence not of the same quality as Basmati, would have led to the violation of the concept of GI and would have been a deception to the consumers. However,
all the patent rights that was granted was rejected.
Intellectual Property law now considers this a very important arena which seeks to preserve the varieties in their natural habitat and let the geographical area where it is traditionally and originally grown have certain special rights over it. This paper is an attempt to understand the impact and importance of such patents and appreciate the law regarding the same in the light of the Neem case, turmeric case and Basmati Case.