The Times of India recently reported that the Indian Council of Medical Research (ICMR) is in the process of documenting traditional medicinal knowledge belonging to indigenous communities (tribals) from the Andamans and is even planning on helping them patent it.
By way of background, the ICMR is the apex agency responsible for the promotion of biomedical research in India. The TOI piece notes in pertinent part:
"ICMR's Regional Medical Research Centre (RMRC) is preparing a unique Community Biodiversity Register (CBDR) for the tribals of the Andaman and Nicobar Islands that will document their traditional healing practices, use of medicinal plants, healing record, mode of preparation of plants' parts and number of patients treated.
Scientists have travelled to 11 of the 15 villages of the Car Nicobar Island, inhabited by the ancient Nicobarese tribe, documenting the use of 124 medicinal plants that are being prescribed to cure 34 different diseases. They have also interviewed 42 Traditional Knowledge Persons (TKP)/folk healers for the project, which is estimated to cost over Rs 38 lakh.
The ICMR plans to acquire patents of these traditional healing techniques for the tribals.
RMRC director Dr Palaru Vijayachari said, "Traditional treasures of the tribal people, like their healing techniques, need to be protected. We are documenting them so that patents can be applied for such practices. We will be documenting all medicinal plants among all accessible tribes. Scientific explanation of the use of the plant will accompany it."
Given this explicit public announcement of an intention to patent traditional knowledge (TK), I went back and examined the relevant TK provision in our patents act and was struck by the way it was worded. Our Act states in very broad terms that any invention based on TK is not patentable. More problematically, it appears to suggest that no patent shall be granted even if the patent application happens to be from the community owning the TK in question. I extract the relevant portion of section 3(p) below:
Section 3: The following are not inventions within the meaning of the Act....
(p) "an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components."
Does this mean that indigenous communities cannot patent their own traditional knowledge, even if such knowledge is known only to that community and is a "trade secret" in this sense?
If interpreted this way, it is nothing short of discrimination against indigenous communities, actionable as a violation of the right to equality guaranteed under Article 14 of the Constitution of India.
One might also interpret the term "traditional knowledge" as used in the section to refer to only publicly known or available TK? But then, why have such an exclusion at all? Is it not redundant? TK that is publicly known or available will in any case not be patentable since it fails the "novelty" test.
Further, such a definition runs counter to the many definitions that have been proposed thus far for TK protection at the international level.
Illustratively, the most recent glossary of terms from a WIPO committee (intergovernmental committee on IP and TK) defines "traditional knowledge" as:
“the content or substance of knowledge resulting from intellectual activity in a traditional context, [including] the know-how, skills, innovations, practices and learning that form part of traditional knowledge systems, and knowledge embodying traditional lifestyles of indigenous and local communities, or 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.”
As evident, this definition clearly encapsulates both publicly known community knowledge and knowledge that is "known" only to the community and is therefore a "secret" in so far as members of the general public are concerned.
Apart from the definitional and interpretative problem with section 3(p), this ICMR episode raises other concerns.
Firstly, one hopes that informed consent norms were strictly complied with and that these communities knew exactly what this project was all about and the proposed documentation of their precious knowledge and its subsequent use.
Secondly, while this is a commendable exercise in terms of the potential for the discovery of new drugs based on this knowledge, the ICMR needs to be very careful about what it does with this database.
The TOI piece goes on to suggest (in language this is a bit difficult to fully comprehend) that the database might be made available publicly, so that others could use this medicinal knowledge to arrive at important medicinal drugs and formulation and presumably take patents out on these new products. The article assumes that the patentee would then compulsorily share proceeds with these indigenous communities, based on whose knowledge, the said patented invention came about.
While this may be true for India (given that Indian law mandates prior approval and benefit sharing), it is not true for other countries. Once the database is available publicly, person X in a foreign country (such as the US) can easily use it to formulate an independently patentable invention without in any way compensating the tribals. And this is precisely why a number of countries are fighting hard for an international instrument that would set minimum standards for the global protection of traditional knowledge. Clearly a murky area that needs to be handled with a lot of sensitivity and care.