[Reader-list] Understanding the Patenting of Traditional Knowledge-In response

[Waquar Ahmed]

The issue discussed below is of great interest to me, especially since my 
M.Phil dissertation at Jawaharlal Nehru University, New Delhi was on 
Traditional Knowledge Systems amongst indigenous (tribal) people in India. 
Through this dissertation, I have examined traditional knowledge as an 
essential part of the identity construction of indigenous people and its 
usefulness in their lives. I have also examined how colonialism, 
modernization (including the idea of nation state, national laws, dam 
building, etc) and globalization vis-a-vis WTO and the intellectual 
property rights regime have tended to dis-empower indigenous people and has 
failed to understand the very essence of these people's way of life. It is 
important to understand as to how these knowledge systems come into 
existence and evolve within a community and that the evolution of this 
intellectual property is very different from 'formal inventions' that take 
place primarily in laboratories with its inventors being recognizable as an 
individual or a group of individuals (private ownership). Most indigenous 
communities in India have their own 'traditional healers' or 'witch 
doctors' who have in depth understanding of their natural surroundings and 
they are the ones who know how to use the plants and other biotic and 
abiotic resources as medicines. Their knowledge is part of the oral 
tradition which is passed down from one generation of 'traditional healers' 
or 'witch doctors' to another. Traditional knowledge related to 
agricultural and hunting practice is known and evolves within the community 
and is know to most members within the community. Here, I do not intend to 
say that traditional knowledge related to healing/medicines do not evolve 
on account of contribution/feedback from the community, in fact it does.

Unless community rights over intellectual property is recognized, it will 
not be possible to economically reward the inventors of traditional 
medicines or seeds or resources that is useful to society at large (from 
which most of the modern medicines and seeds are derived) and 
Pharmaceutical and seed companies are going to contest any such effort with 
all their financial might.

You are most welcomed to get back to me with questions on the social, 
political and ecological dimensions of this discourse. Besides, you could 
also meet Dr. B. S. Butola at the Centre for Regional Development, 
Jawaharlal Nehru University while you are there in Delhi. He is a genius 
and meeting him will be worth the effort in the context of your project. 
Another person that you could meet is Dr. Suman Sahai of Gene Campaign (an 
NGO in Delhi). Gene Campaign specializes on the issue that you are 
examining. They work for the rights of farmers and indigenous peoples 
vis-a-vis issues of biopiracy, TRIPS, WTO, et al. Their website is 
www.genecampaign.org . You could also go through my M.Phil dissertation 
(and take note of all the references) which is titled as 'Society Nature 
Relations and Traditional Knowledge of Indigenous Communities: A Case Study 
of Uttaranchal'. Though the title might sound misleading, it contains in 
detail all that I have written above briefly.

Best wishes,
Waquar Ahmed.
Graduate Teaching Associate and Ph.D. Student,
Department of Geography,
1155 Derby Hall, North Oval Mall.
Ohio State University, Columbus 43210.
Email: ahmed.109 at osu.edu


At 05:03 AM 1/26/2004 +0000, Aarathi Chellappa wrote:
>Patents have traditionally been awarded to promote
>invention and innovation. The aim of establishing a
>patent system was to encourage inventors in various
>fields of technology to develop new and useful
>products and/or processes and disclose them to the
>general public, in return for which, a monopoly over
>the manufacture or use of the product of process was
>awarded to the inventor. However, in order to qualify
>for a patent, the invention or innovation would have
>to be new, novel and useful.
>
>Whether a patent is new in its particular field of
>technology is tested against the existing body of
>knowledge in that field. In the light of this newness
>requirement, it is surprising that over the past few
>years, the United States Patent and Trade Mark Office
>("USPTO") has granted patents over products or
>processes already known in other parts of the world.
>
>I will examine patents granted by the USPTO over
>inventions or innovations that were already known in
>traditional knowledge systems in other parts of the
>world. The outcome of the research would be to
>understand why such patents were granted. There are
>numerous issues that arise in such an undertaking.
>Primarily, the concepts involved will have to be
>defined. What is prior art? What is traditional
>knowledge? Etc. Also, I am studying the overlap
>between traditional knowledge and prior art. In some
>cases, like turmeric, the knowledge is fairly
>widespread enough for it to be treated as known to the
>general public. In other cases, the knowledge is
>limited to a few members of a particular group. Would
>that also equate to prior art? Is such equivalence
>fair? I will also be examining what a prior art search
>would cover and what the limitations of a prior art
>search are.
>
>Another issue of concern is whether patent drafting
>methods can be adopted to avoid effective prior art
>searches? As part of my study, I will be examining the
>various attempts being made by organizations to
>protect traditional knowledge. Several moves are being
>made to database traditional knowledge, therefore
>making it available for prior art searches by patent
>offices worldwide. However, there is a possibility
>that careful patent drafting may frustrate these
>efforts.
>
>The materials that will be studied are the actual
>patent applications, articles and books on the
>subject, relevant case law and national and
>international laws. I hope to visit CSIR in Delhi to
>learn from them what efforts are being made to prevent
>the turmeric, basmati and neem situations from
>recurring. I will also visit other organizations in
>India that are undertaking similar efforts. The first
>phase is a review of literature and is underway. I
>have begun by reading available articles on the area,
>currently articles available electronically. I will be
>visiting libraries in the course of the next week.
>
>I look forward to feedback, comments etc.
>Thanks,
>Aarathi.
>
>
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