Wednesday, November 20, 2013

Prior art: Including indigenous /traditional knowledge (IK/TK)

Copyright © Françoise Herrmann
Neem tree
Two out three determining criteria of patentability -- novelty and inventive step -- rely on an examination of what is termed prior art. Indeed, an inventor will have to search all prior art sources to make sure that the invention s/he is claiming does not exist elsewhere, in some published form. Similarly, examiners in charge of determining the patentability of an invention recited in a patent application will conduct prior art searches to make sure that the invention is indeed patentable. And finally, any litigation arising in the process of determining patentability, and in regards an infringement procedure, will also rely on prior art because the existence of this art will either deny novelty or demonstrate that the claims are infringing on some already existing form of the invention.  
So far, so good…This is all about prior art in a print tradition; knowledge in a language known to the Western world or for which there are printed records.
But what happens when knowledge has no written record? What happens when knowledge is shared by a community as an ancestral practice, handed down from one generation to the next in initiation and an oral tradition? How do you include this knowledge, and these practices, in the dataset that will serve to determine the patentability of an invention? How do you include this sort of prior art, termed traditional or indigenous knowledge [TK or IK], in the determination of novelty or inventive step of an invention?

Until fairly recently, the answers to these questions were simply ignored, or to put it less sweetly, this sort of prior art was largely illicitly appropriated and plundered, as Vandana Shiva has  pointed out, and extensively described in her work on biopiracy (Shiva, 1997, 2002).

In fact, it took a reversal of the decisions to grant two patents to set precedence: one reversal in 1997 of a decision the USPTO had previously taken to grant US 5401504; and another reversal in 2000 of a decision the EPO had previously taken to award EP436257.Thus, in recognizing the existence of traditional or indigenous knowledge as evidence of prior art, both revocations consequently laid the groundwork for a more equitable and fair evaluation of patentability. The first patent, EP436257, had been awarded for the use of Neem Tree oil (Azadirachta indica), as a pesticide, and it was revoked when traditional Indian knowledge was provided as evidence of prior art, existing for thousands of years in India. The second patent, US5401504had been awarded for the healing properties of turmeric (Curcuma longaa spice and plant used for healing since the dawn of time in India, and it was revoked when such prior knowledge was brought before the EPO as evidence of prior art. 

Add to the USPTO and EPO decisions to reverse patents they had previously awarded, passage of the TRIPS (Trade-related aspects of Intellectual Property Rights) agreement a few years earlier, in 1994, and you will begin to find answers to the questions posed previously in regard patentability, and the miss-appropriation of indigenous resources, including knowledge, practices, technologies and commodities.

You will find answers appearing as organized dissent in the 600-year, extraordinarily consensual, history of the patenting system; answers arising as the full-scale resistance of third world countries to certain provisions of the TRIPS agreement which incorporates patenting rights in the context of world trade and thus seeks to extend patenting rights on a global level. Answers in the form of new international conventions such as the 1992 UN Convention of biological diversityset forth to guarantee and protect biological diversity, to promote sustainable practices and fair and equitable sharing of benefits, And, as part of this new, more genuine and more inclusive international dialogue, the clever compilation and recording of indigenous knowledge and practices in the form of databases and registries, under the auspices of such global international institutions as the UNESCO, the World Bank and WIPO (World Intellectual Property Office - the UN patent office).

Interestingly enough, the Indian TKDL – Traditional Knowledge Digital Library, initiated in 2001, within the previously mentioned context of dissent, under the auspices of the Indian government and several large public health institutions of India, has not only sought to record ancient knowledge, including 1200 Ayurvedic medicinal formulations, it has also digitized and translated this traditional knowledge into French, English, Japanese, German and Spanish. And, most importantly, the TKDL has devised a Traditional Knowledge Resource Classification (TKRC) system based on the 25,000 subgroups of the International Patent Classification System (IPC) to index all of the traditional knowledge recorded. Thus, the TDKL makes it easy to search IndianTK/IK, and indeed has signed agreements with the USPTO and other patenting Offices, allowing prior art searches to crawl into the TDKL.  

Conversely, the existence and development of the TKDL has also commissioned task forces for the re-examination of previously granted patents. Using TK as evidence of prior art, the task forces endeavor to further determine the validity of previously awarded patents, considering the sort of precedence afforded when the USPTO and EPO reversed their decisions to award turmeric and Neem tree patents.

Finally, to the extent that the new TK classification system incorporates the existing International Classification (IPC) system, the new TK system has also contributed to the expansion of the IPC system with the incorporation of 207 new and additional sub-categories for medicinal plants.
Thus, in the mighty scheme of the patenting system, the TKDL indeed appears as an exemplary manner of inclusion -- on more counts than one! ”.
So... consider this “making it right” -- much like former President Clinton speaks of building better”!
 Below, you will find listed a few links to available databases of Indigenous knowledge (IK), Traditional Knowledge (TK)  and Best practices of Indigenous/Traditional knowledge, under the auspices of The World Bank, UNESCO, WIPO, and in India at the TKDL – Traditional Knowledge Digital Library, under the auspices oftheIndian Council for Scientific and Industrial Research (CSIR], the Department of Ayurveda, Yoga, Naturopathy, Unani, Siddha and Homeopathy (AYUSH), the Ministry of Health & Family Welfare and the Government of India.

 The World Bank - Database of Indigenous Knowledge  - Sub-Saharan Africa

UNESCO – Register of Best practices on Indigenous/Traditional Knowledge

WIPO – World Intellectual Property Organization – Traditional Knowledge

India – TKDL – Traditional Knowledge Digital Library

Shiva, V. (1997) Biopiracy: The plunder of nature and knowledge.   Cambridge, MA: South End Press.
Shiva, V. (2002)Protect or plunder: Understanding intellectual property rights (global issues).London, UK: Zed Books.
Monfils, L.(2008)  Flower of the curcuma longa. Photograph at Wikimedia Commons:
Neem Tree – Courtesy of Google images
 Turmeric (Curcuma longa)

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