Emerging IP Regimes & Traditional Knowledge Systems in Indian Agriculture

105th FoCARS

Foundation Course For Agricultural Research Service

Digital Repository of
Course Materials

Administrative Agriculture Scenario &
Procedures Research Systems

ICT Management Research Project ©
Management
Technology
Technology Diffusion © Management & IP
and Adoption
Technology
Management & IP

Human Resources
Management

• Technology Assessment

• Technology Forecasting

• IPR in Indian Agriculture

• Emerging IP Regimes & Traditional
Knowledge Systems in Indian Agriculture

Course Coordinators
K. Kareemulla and S. Ravichandran

Support Team
P. Krishnan, K.V. Kumar and P. Namdev

1EMERGING INTELLECTUAL
PROPERTY REGIMES AND
TRADITIONAL KNOWLEDGE
SYSTEMS IN INDIAN
AGRICULTURE 2

R.Kalpana Sastry3 and Anshul Shrivastava4

Abstract

Keeping in tune with global developments, the intellectual property landscape
in developing countries including India has undergone several major changes
during compliance with TRIPS agreement. While these changes are slowly
getting institutionalised, there is a felt need to recognise and give due credit
to several products and processes generated using the rich knowledge base
present as part of heritage of the country. This paper presents some of the
complexities emerging at interface of IP landscape and traditional agricultural
knowledge systems. It also points to some of the rapidly evolving
mechanisms in balancing ownership rights between technology developers in
the formal systems and the custodians of TK systems in the informal systems.

Keywords: traditional knowledge, intellectual property, agricultural
knowledge systems

Introduction

1 Paper published in : R. Kalpana Sastry, and Anshul Shrivastava. 2013. Emerging Intellectual Property Regimes and Traditional
Knowledge Systems in Indian Agriculture. Pages 145 -160 In: Indigenous and Traditional Knowledge for Promotion of Sustainable
Agriculture. (Eds: V.Suresh Babu, K.Suman Chandra and SM Ilyas) . NIRD. August 2013. ISBNN: -81-85542-96-6.
2 To be used as part of academic reading during the course of FOCARS 101 [January 1 to March 31, 2015] by the 239 scientist-trainees
only. National Academy of Agricultural Management. Hyderabad.

3 Joint Director, NAARM
4 Research Associate, NAARM

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Rising population and accelerating economic growth require further
intensification of agriculture to meet the increasing demands for food. The
demands would not only be in terms of the quantity of food produced, but
also of its quality. This can lead to significant impacts on the fragile agro eco-
systems, particularly in the face of rising demands for non-agricultural uses
of natural resources, threatening the base of the agrarian economy. It is
increasingly being realized that some of these challenges can be overcome by
innovations in technologies and ensuring their more concerted diffusion. For
instance, problems leading to the energy crisis, low power output,
deterioration of soils, and declining water resources for drinking and
agriculture are some of the critical areas needing the focus for major
innovations. Keeping the guiding principle of inclusive growth in view, the
current approach is to rebuild agriculture as an important source of livelihood
generation both in the farm and non-farm sectors and ensure that there is
adequate and nutritive food for the growing populationi. In agriculture sector,
use of emerging technologies is usually to add value to existing knowledge
base of products or processes. For instance most improved varieties /animal
breeds or hybrid or the genetically modified crops are often based on input
from available biological resources like germplasm, land races or traditional
varieties, elite breeds. Farmers, professional scientists continuously use these;
recombine these as inputs to create new varieties in order to sustain
productivity as economic and environmental conditions changeii. This process
of research supplemented by farmers‟ contribution has been the pivotal point
of success in a country like India with most primary input for agricultural
systems are from the biodiversity. The associated resources including genetic
resources have traditionally been made available on unrestricted basis. A
model where there is merger of traditional knowledge with the emerging
technologies is the most „ideal‟ one in process of harnessing science –based
tools for enhancing productivities for the food security or for bettering rural
incomes. However, as evidenced particularly in recent past, the use of these
new technologies are likely to get complicated with the new intellectual
property (IP) rightsiiiregimes, problems of equity and access to technologyiv,
issues of benefit sharing to traditional knowledge holders, safety of

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ecosystems/environment, and increasing investments etcv.These become
more complex in the agricultural production- consumption systems which has
multiple stakeholders and is multi-layered model.
The objective of this paper is to present a brief overview of the present legal
IP regime for prospective proprietary ownerships. Then it documents few of
the knowledge resources of traditional knowledge (TK) and indigenous
traditional knowledge (ITKs) for use of researchers and innovators in the
agri-value chain. Finally, it discusses some of the emerging trends at
intersection of traditional knowledge and intellectual property rights5.
1.IP Landscape for Agri-based Technologies in India
The WTO-TRIPs agreement of 1995, which is binding on all member countries
including India, provided for minimum norms and standards in respect of
protection of IPR in several categories: patents, copyrights, trademarks, plant
varieties, geographical indications, industrial designs, layout designs of
integrated circuits, and trade secrets. This agreement led India to put in place a
set of appropriate and compliant mechanisms and instruments. Some of the
legal instruments passed by the Indian Parliament as part of compliance
process to the TRIPs include The Patents Act, 1970 (39 of 1970), The Patents
(Amendment) Act, 1999 (17 of 1999), The Patents (Amendment) Act 2002 (38
of 2002), The Patents (Amendment) Act 2005 (15 of 2005), The Geographical
Indications of Goods (Registration & Protection) Act, 1999 and The Protection
of Plant Varieties and Farmers Rights Act, 2001 (PPV FR Act) (53 of 2001).
Apart from these, the Government of India also enacted an umbrella legislation
called the Biological Diversity Act, 2002 (No.18 of 2003)vi as part of the
country‟s commitment to Convention of Biological Diversity (CBD). Various
ministerial departments under the Government of India are responsible for the
administration of these Acts (Table 1). At present, there is no specific IPR Act
to provide protection for undisclosed information (trade secret). The Indian
Contract Act of 1872 and common law have provisions covering this with the
Ministry of Law and Justice as the nodal agency. In October, 2007, the
Department of Science and Technology, Govt of India released a draft version
of the proposed National Innovation Act 2008vii. This is to provide legislative

*Corresponding author: [email protected]

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framework to protect trade secrets in India considering opportunities for
trading in innovations. In addition, the biodiversity-IPR related matters are
covered under the Biological Diversity Act, 2002 by the National Biodiversity
Authority wherein the Ministry of Environment and Forests is the nodal
agency. Two ministries under the Government of India (GOI) namely, the
Ministry of Commerce and Industry and the Ministry of Human Resource
Development, act as the nodal agencies for various issues pertaining to
traditional knowledge in agri-innovation cycles.

Table 1. Broad Institutional Mechanism(s) of the Indian IPR Regime.

S.No. IP Legislation Administration Nodal Agency
Authority

1. Patent The Patents Act, 1970 The Controller Department of Industrial
2. Design The Design Act, 2000 General of Patents Policy & Promotion (DIPP),
Designs and Ministry of Commerce and
Trademarks Industry (MoCI)
(CGPDT)/Controller
of Patents

The CGPD/Registrar
of Designs

3. Trade Mark The Trade Marks Act, 1999 The

CGPDT/Registrar of

Trademarks

4. Geographical The Geographical The

Indication Indications (Registration CGPDT/Registrar of

and Protection) Act, 1999 Geographical

Indications

5. Copyright The Copyright Act, 1957 Director and Department of Secondary and
Registrar of Higher Education, Ministry of
Copyright Human Resource
Development (MHRD)

6. Integrated The Semiconductor Registrar, Department of Information

Circuit Design Integrated Circuits Layout- Semiconductor Technology, Ministry of

Design Act, 2000 Integrated Circuits Communications and

Layout-Design Information Technology

Registry (MoCIT)

7. Plant varieties The Protection of Plant Protection of Plant Department of Agriculture
Varieties and Farmers‟ and Cooperation, Ministry of
Varieties and
Farmers‟ Rights

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Rights Act, 2001 (PPV&FR) Agriculture
Authority/Registry

8. Undisclosed The Contract Act, 1872; Civil courts Ministry of Law and Justice

information Common (Civil) Law

9. Biodiversity The Biological Diversity National Biodiversity Ministry of Environment and

Act, 2002 Authority (NBA) Forests (MoEF)

10. Traditional None Secretary of the MoHRD; MoCI
knowledge concerned
Ministry(ies)

Source: Kochhar, Sudhir 2008viii.

In addition to these legislative reforms, the GOI has initiated several policy
measures to institutionalise the legislative amendments. For instance, The
Science and Technology Policy announced in 2003, aims at establishing an
intellectual property regime which maximized the incentives for the
generation and protection of IP by all types of innovatorsix. Similarly, the
largest publicly funded agricultural research organization in India, Indian
Council of Agricultural Research (ICAR) has now adopted an IP policy
frameworkx with a detailed process of developing intellectual property rights
(IPR) management strategies for effective transfer of IP protected
technologiesxi. Similarly, The Protection and Utilisation of Public Funded
Intellectual Property Bill proposed very recently during 2008, envisages a
framework for protection and utilisation of intellectual property created out of
public funded research and development. This bill also proposes that the
inventing institution be assigned these rights (much like the Bayh-Dole Act
does in the US) and also seeks to provide for a funding agreement between
the government and the recipient before release of grant for research and
developmentxii. Besides seeking to bar public disclosure, publication and
exhibition of the public funded intellectual property, the Bill lists duties of
the recipient who retains the title.

All the initiatives described above indicate on-going efforts to
institutionalize defined legal norms towards technology push and for
commercialization of technologies. The agricultural sector is also impacted

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by these developments. Among the several changes, the recent growth of
high-value agriculture has led to development of institutions for better
vertical coordination, coinciding with other structural changes in agricultural
supply channels. This is a different model from green revolution era and
presents both opportunities and challenges for small farmers in developing
countriesxiii. It also initiates the entry of multiple sources including players
from private sector in a plurastic information flow environment. As the IP
landscape evolves, the traditional holders of knowledge and genetic sources
in the informal sector would need special attention. It is often feared the
projected economic benefits due to IPs may not reach such holders of
informal knowledge and the producers in the traditional loopxiv.
A tabulation of the possible IP assets in agriculture R& D with their
qualifying attributes under relevant legislations is presented in Table 2. The
possible beneficiaries in value chain are identified along with a listing of
apprehensions likely to impact the stakeholder(s) as consequence of
commercialization. In view of these fears of stakeholders, it is necessary that
a mechanism of proper stewardship is in placexv.

Table 2. Summary of IP Assets, Legislative Provisions and Potential

Returns to Stakeholder (s)

Protection Qualifying Governing Stakeholder (s) Possible Apprehensions
form Attributes Legislation projected to be

benefited

Patent New ,novel, useful The Patents Act, Inventors, Traders, Social, Ecological, Economic
invention- 1970 and Economy disruptions at rural levels
amendments
thereon

GI Known product, The Geographical Communities, Enhanced input costs,

process Indications of Traditional Protection not international

Goods practices,

(Registration & knowledge holders

Protection) Act,

1999

Trade Marks Distinguishing The Trade Marks Industry- products Increased consumerism;
character Act, 1958 and and service sector Possible threat to small
amendments

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Protection Qualifying Governing Stakeholder (s) Possible Apprehensions
form Attributes Legislation projected to be

benefited

thereon industries in villages

Plant Variety Novel, distinct, PPV&FR Farmers, Breeders, Skewed models of benefit
stable, uniform Act,2001 Seed Companies sharing; Control on resources
(NDUS)
Crop/hybrids

Copyright Databases, books, The Copyright Creators of all Legal suits, increasing
literary products Act, 1957 works plagiarism; denial to
information

Design Agri-products Design Act, 2000 Industry including Increase in inputs costs
SMEs

Community Traditional BD Act, 2002; Knowledge holders Issues in Benefit sharing,
rights in communities; possible biopiracy; ecological
Knowledge/ PPV&FR Act
threats
Genetic Resources 2001

Data Data, parental No specific Act; Researchers, Secrecy; Data loss
protection lines, confidentiality companies
agreement

MTA Germplasm, BD Act, 2002; Researchers, True holders may get side
genes, clones, PPV&FR Act, communities, tracked
Gen. material 2001 Organizations

*Based on data compiled by the authors from various sources.

2. Other legal provisions for TK protection

In India, apart from the legal framework described in above sections, there
are some special provisions in some of the laws which aim to protect
traditional knowledge and can help towards the establishment of regulatory
frameworks for protecting the traditional knowledge that have an effect on, or
relate to, intellectual property-type protection. The three such legislative
acts/amendmentsxvi currently in place for the protection of traditional
knowledge are summarized in Table 3. The statutory provisions are also put
forth.

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Table 3: Summary of Legislation related to TK Issues

TK Legislation/Act Salient features
Drug and Cosmetics
Act, 1940  The object of the Act is to regulate the import, manufacture, distribution and
Biological Diversity sale of drugs. It contains provisions on traditional knowledge (TK).
Act, 2002  Subject matters protected: Patents (Inventions), Traditional Knowledge (TK)

Patent (Amendment)  The objective is to provide for conservation of biological diversity,
Act, 2005 sustainable use of its components and fair and equitable sharing of the benefits
arising out of the use of biological resources and knowledge.
PPV&FRA Act ,2001  The Act foresees the protection of “knowledge of local people relating to
Registration of Plant biological diversity” (Art.36(5)). “Biological diversity” is defined as “the
variability among living organisms from all sources and the ecological
complexes of which they are a part, and includes diversity within species or
between species and of eco-systems,” (Art.2(b)).
 The Act maintains that the scope of rights granted by measures for
protection, including sui generis systems, shall be “as recommended by the
National Biodiversity Authority” (Art.36(5)).
 Mandatory approval from National Biological Authority (NBA) for access
and use of biological resource occurring in India (Sec.3)
 Regulation by the boards at national (Sec.4) and at state levels (Sec.7), for
access, transfer or exchange the biological resources including use of genetic
resource inventions and traditional knowledge (TK) (Sec19)
 Committed to oppose grant of IPRs in any country outside India on any Indian
Biological resource, Sec 18 (4)
 Application for any IPR resulting from invention based on research or
information on biological resource obtained from India not to made without
approval of NBA (Sec.6)
 Ensure equitable benefit sharing on benefits arising out of use of accessed
biological resources, their by-products, innovations and practices, knowledge in
accordance with mutually agreed terms (MAT) Sec21.


 The Patents (Amendment) Act, 2005 is the third of three amendments to the
Patents Act of 1970, to bring India‟s patent regime into compliance with the
WTO TRIPs Agreement.
 It extends the product patent protection to the areas of pharmaceuticals and
agricultural chemicals.
 This Act contains provisions relating to patent and traditional knowledge
(Art. 23(1)(k) & Art. 23(2)(k)), and genetic resources (Art. 10 & 25).
 Subject matters protected: Genetic Resources, Patents (Inventions),
Traditional Knowledge (TK).

 The PPV&FR Act directs the Authority to take steps to recognize farmers
who have at any point of time made contribution in conserving, improving and
making available plant genetic resources for the development of new varieties
 Establishment of Plant Varieties Registry (Sec. 12)
 Maintain national register of Plant Varieties (Sec.13)
 Ensure Farmers Rights (Sec.39) and Rights of communities (Sec. 41)
 “Registration of Plant Germplasm” mechanism was established at the

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Germplasm National Bureau of Plant Genetic Resources (NBPGR) by the Indian Council of
Agricultural Research (ICAR) in 1996
 An authentic national documentation system of valuable sovereign genetic
resource with known characteristics
 Provides a system for recognition of those associated with the development
and identification of improved or unique germplasm and genetic stocks
 Provide soft protection under the present IPR scenario

After the compliance with TRIPS agreement, efforts to operationalize the
various statutory bodies and provisions have been underway. These efforts
are now resulting in actions from all the offices. Table 4 indicates examples
of few objections by examiners at Indian Patent Office (IPO) on applications
based on biological resources. These objections centre on lack of permission
from NBA (Section 6 of BD Act). Such instances indicate the awareness in
patent offices and initiatives to actualise the provisions enshrined in laws.
While these are early-stage developments, they indicate growing linkages
between patent office and Biodiversity Authority as visualized in laws. This
augments well for all those engaged in TK activities in the country and
dispels some of apprehensions felt by the society. It also underlines the need
for researchers in R&D to be aware of provisions in laws of land while using
TK processes or products in R&D activities and commercialization thereon.

Table 4: Examples of Objections on Patent Applications* based on
Biological Resources by IPO

Applicant Objection criteria

Central Council for Research of Ayurveda & Siddha Section 6 of Bio-Diversity Act

Defence Research & Development Organization Lack of prior permission from the NBA under
Section 6 of the Bio-Diversity Act.

Council for Scientific & Industrial Lack of permission from National Biological
Research Authority (NBA)

Council for Scientific & Industrial TK objections based on TKDL and also lack of
Research permission from the NBA

*Source: http://spicyipindia.blogspot.in/search/label/TKDL

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3. Sources of Documentation of Biological Resources and associated TK

in India -

The use of biological resources in promoting sustainable use on one hand and

ensuring equitable benefit sharing along with conserving the biological

diversity is indeed a challenge. Even before the emergence of legal

framework in India, several agencies have been engaged independently by

attempting to scout, validate and document sources of biodiversity. These

steps aim to foster sustainable development and also to protect the local

interests against the global interests through conciliatory rather than
conflicting approach6. Table 5 gives a tabulation of some efforts made by

several agencies.

Table 5. Sources of Documentation of Biological Resources and

associated TK in India

Activity/Year launched Agency Type of Description of activity
Agency undertaken
National Biodiversity Ministry of Environment and Public-
and Strategy Action Forests, UNDP; Kalpavriksh; Private Assessment and stock-taking
Plan, 1999 Biotech Consortium, India Public of biodiversity-related information at
National Innovation Dept. of Science & Tech. national and state levels
Foundation, 2000 Indian Institute of Public Register and support grass root
Management (IIM) Public innovations
Biodiversity Plan Govt of Karnataka
Mission Mode Project on Indian Council of Agricultural Public State laws on biodiversity
collection, documentation Research NGO Documentation and registration of
and validation of indigenous Public TK
technical knowledge, Council of Scientific &
2002- 03 Industrial Research NGO Int. Library on Traditional
TK Digital Library (TKDL), Foundation for Revitalisation Knowledge
2006 of Local Health Tradition Records the status, uses and
People‟s Biodiversity Indian Institute of Science management of living resources
Registers, 1995 Provides spaces for the rights to
Community Biodiversity communities about their biological
Register, 1995 and cultural heritage
Agro-biological conservation of
Conservation Movement Research Foundation for indigenous varieties; 32 community
Science, Technology and seed banks
Ecology

Movement for Securing Gene Campaign NGO Collection, characterisation
Benefits for Local Private traditional varieties and practices
Communities Several other NGO‟s,
Movement for Securing peoples movement formal/ Recognition of TK/practices,
Benefits for Local informal conservation, identifying holders of
Communities knowledge

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Honey Bee Network, 1996 Sristi NGO Document innovative practices of
National Biodiversity and farmers/ artisans
Strategy Action Plan, 1999 MS Swaminathan Research Private
Database Foundation Public Document contributions of tribal
Pattuvam Village, Kerala Public groups for securing benefits
Village Registry, 1997 Produced a registry of genetic
NBPGR, ICAR resources (GR)
Registration of Plant Provides recognition to those
Germplasm, 1996 associated with the development
and identification of
ASIAN AGRI-HISTORY Asian Agri- History Foundation Non-profit improved or unique germplasm
trust and genetic stocks and is
(International English Hyderabad considered as defensive or soft
protection option
Quarterly Journal), 1994 Provides documents that contain
information of ancient and medieval
agriculture of Asia

Source: Kalpana Sastry, 2007

The presence of these documentation processes, across the country, indicate
the defensive strategy where knowledge bases. Developing formalised sets of
knowledge from the informal sector would be defensive but an effective
strategy to counter the aggressive trends of patenting such knowledge and
ensuring the ownership to rightful owners of these creations. While such
early –stage initiatives are laudable, it is essential to up scale these initiatives
into more formal settings and ensure the acceptability at legal levels in India
and also at international level. It is now an accepted fact that several of the
Third World countries have resource rich heritage and there is need to have
access of such authenticated sources of this knowledge to the granting
authorities in National Patent Offices across the World. The accordance by
World Intellectual Property Organization (WIPO) to two science journals
namely, Indian Journal of Traditional Knowledge (IJTK) and Medicinal and
Aromatic Plant Abstracts (MAPA) published by CSIR, as mandatory
reference literature for international search authorities under WIPO is one
such recognition. India is now part of a select group of 13 countries whose
science journals are in minimum documentation list of Patent Cooperation
Treatyxvii (PCT). In fact, it is the only developing country in that group which
consists of 12 more developed countriesxviii.
3.1 The Case of Traditional Knowledge Digital Library (TKDL)

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The issues of biopiracy and unethical bioprospecting came into prominence
after Government of India successfully achieved revocation or limitation
of turmeric and basmati rice patents granted by United States Patent and
Trademark Office (USPTO) and the neem patent granted by European Patent
Office (EPO) in late 1990sxix. Soon cases of more such patent claims came
into light and also the fact that India‟s vast traditional medicine knowledge
existed in languages like Sanskrit, Hindi, Arabic, Persian, Urdu, and Tamil,
making it inaccessible for patent examiners at the international patent offices
to verify such claims. In 2001 a collaborative project between the Council of
Scientific and Industrial Research (CSIR), Department of Ayurveda, Yoga
and Naturopathy, Unani, Siddha and Homoeopathy (Dept. of AYUSH) and
Ministry of Health & Family Welfare, Government of India was initiatedxx.
The major objective of the library is to protect the ancient and traditional
knowledge of the country from exploitation through bio-
piracy and unethical patents, by documenting it electronically and classifying
it as per international patent classification systems. Apart from that, the non-
patent databasexxi, also serves to foster modern research based on traditional
knowledge, as it simplifies access to this vast knowledge, be it of traditional
remediesxxii, or practicesxxiii. Presentation on Traditional Knowledge Resource
Classification (TKRC) at IPC Union led to the creation of WIPO-TK Task
Force consisting of USPTO, EPO, JPO, China and India by (IPC) Union for
enhancing the sub-groups in IPC for classifying the TK related subject matter
and considering the linking of TKRC with IPC. Thus, a Traditional
Knowledge Resource Classification (TKRC) has been devised for easy
retrieval in by any patent examiner, anywhere in the world. The entire text is
available in five languages: English, German, French, Spanish and Japanese, .
As the database project reached its completion, Government of India started
the access of TKDL to international patent offices through TKDL Access
Agreement from 2009 onwards, subject to a non-disclosure clause. This
allows patent examiners to evaluate patent applications and stop attempts to
patent traditional knowledge as "new" inventionsxxiv. Till date, TKDL Access
Agreements have been signed with European Patent Office (EPO)( in
February 2009 xxv); CGPDTM (Indian Patent Office) German Patent and

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Trademark Office (DPMA) (in 2009); United Kingdom Trademark & Patent
Office (UKPTO); the U.S. Patent and Trademark Office (USPTO)xxvi;
Japanese Patent Office (JPO), Canadian Intellectual Property Office (CIPO)
in 2010; Intellectual Property Australia (IP Australia) in
2011.Currently, the Traditional Knowledge Digital Library (TKDL)
databasexxviiprovides access to 2.23 Lakh medicinal formulations which
were available in Indian ancient books.
3.2 Role of TKDL in Patent Examination Offices

After the setting of TKDL and the relevant agreements with Patent Offices,
use of this database knowledge in patent examination at patent office has
resulted in several applications getting rejected on grounds of evidence of
prior art from TKDL. As part of the agreement, capacity building initiatives
for access and retrieval from TKDL have been undertaken by TKDL
authorities. The examiners in patent offices can base their decisions using
this. If required, TKDL authorities provide detailed and further evidences on
request by the examiners. Table 6 shows few of actions in various patent
offices based on evidences in the TKDL.

Table 6: Office Action by Patent Offices based on evidence from TKDL

Patent application status Number (s) Country

Cancellation of intent to grant patent 2 EPO(2)

Patent application withdrawn 66 EPO(65); AusPat (1)

Amendment/modification of claims by 32 EPO(23); AusPat (3);

applicant due to TKDL prior art evidence USPTO(6)

Patent applications revoked/ rejected/ 27 UKPTO(3); CIPO(23);
cancelled/terminated/dead# IPO(1)

Claims rejected/cancelled by utilizing the 12 USPTO(9); EPO(2);

TKDL IPO(1)

*Source: http://www.tkdl.res.in/tkdl/langdefault/common/Outcome.asp

# Dead application in CIPO-The date that an abandoned application could
normally no longer be reinstated.

4. Emerging Trends at intersection of use of TK and Patents

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The discussion above indicates the how available knowledge resources
accessible to grant authorities across the world can help in combating claims
by prospective developers of technology. Box enumerates details of recent
decisions of Indian Patent Office to revoke a grant and a rejection of
application by UK patent Office.

Box
Case Study 1:- Recent Decision to revoke of Avesthagen
patent –
Facts of patent application:
i.Applicant: Avesthagen Ltd
ii.Application Number: 1076/CHE/2007
iii.Title of Invention: A synergistic ayurvedic/functional food
bioactive composition (cincata) and a process of
preparation thereof
iv. Publication date: 05/12/2008
v. Post Grant Journal Date: 27/04/2012
vi. Status: Patent revoked
Background of case: It has been found that Chennai patent
office approved a patent to the Bangalore-based
Avesthagen on a composition that comprised jamun and
cinnamon extracts on an application (1076/CHE/2007)
filed in 2007. Avesthagen had made a similar application
for a patent in 2007 to the EPO patent office, which was
not granted following an objection in an independent
intervention from TKDL. The EPO gave an adverse search
report indicating that the patent indeed infringed upon
India‟s traditional knowledge. Now, based on objections
raised by EPO and the TKDLxxviii, Indian Patent officexxix
have since revoked the patent. For the TKDL, this case
comes as a major success because it is the first Indian
patent to be revoked on the basis of the evidence from after
its creation in 2005.

Case Study 2:Patent Grant for Traditional Knowledge of
India on Ginger Rejected by the British Patent Office
Facts of patent application:

i.Title of invention: Pharmaceutical composition for the
treatment of excess mucous production

ii.Priority date: 16/03/2006
iii.Inventor: Nicholas John Larkins

iv. Status: Patent rejected by British Patent office

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Background of case: The British patent
application discloses a composition comprising Ginkgo
biloba or extract or component thereof; apocynin; and
a gingerol (Zingiber officinale). The composition may be
used to treat diseases such as Cystic fibrosis
(CF) and Chronic obstructive pulmonary disease
(COPD).

However, Zingiber officinale is the scientific name for
ginger and commonly known as ‘adrak’ in India.

Ginger has been used as medicinal remedy for cough

and cold since ages in India. Moreover, the medicinal

properties of ginger have been the traditional

knowledge of India. Consequently, the department of

AYUSH and Council of Scientific and Industrial

Research (CSIR) intervened and provided evidence

from age-old ayurveda and unani books, dating back to

the 18th century that talked about ginger to treat cough

and other diseases. Thus, patent prior art

knowledge was retrieved from the Traditional

Knowledge Digital Library (TKDL)

database of India and submitted at the UK patent office.

Subsequently, the patent examiner took into

consideration of the prior art traditional knowledge of
India and rejected the patent applicationxxx for

the ginger based pharmaceutical composition for the

treatment of excess mucous production.

Perhaps, one of facts in many of these cases could be lack of awareness on
knowledge as prior art by the applicants resulting in objections by the
examiners. While access to such databases like TKDL to all researchers may
not be permissible, researchers can get a prior art search report on request
from TKDL before they initiate patent applications for their work. It is
advisable for researchers conduct a reasonably valid prior art search before
they embark on applications for patent to avoid rejections or revocations.
Such an approach by prospective applicants should become part of best
practices in any technology development.
Further, a recent action by Controller General of Patents Designs and
Trademarks, CGPTM to put forth draft guidelines developed for the
examiners on issues related to TK based applicationsxxxi. Comments on these
have been requested from public these are put into practice. All these efforts
signal good signs of developing best practices of governance

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framework/model for reducing the misappropriation of traditional knowledge
in patents using biological resources.

Conclusion

The discussion in this paper centered mainly evolving IP landscape and
legal framework for innovations in agri-value chain. A variety of legal
IP protection mechanisms are now in place which include patents,
trademarks, trade secrets, copyrights, plant variety protection(PVPs),
designs. Considering the fast emerging nature of technologies across
other sectors and available plethora of innovations being in rural
landscape, a convergence model is needed. Since patents are the
immediate and direct outputs from research, filings for these would be
a first step taken by most technology developers across the world.
Assembling other IPs like trademarks, copyrights etc in the portfolio
for commercialization would follow as the technology advances into
the market and the later stages of product development processes set in.
It also pertinent to point out that assets like know-how or trade secrets,
on inventions related to traditional knowledge base could be expected
to play a major role in very near future as research advances.
Therefore, researchers or technology transfer professionals in R&D
sector are equipped with sound knowledge of drafting and executing
material transfer agreements (MTAs), confidentiality and licensing
agreements while using ITK based research products. Developing open
access models, or encouraging use of propriety ownerships on
humanitarian licensing models, can form part of technology transfer
models to minimize the complications on access to technologies
contributing for food production, through stakeholder discussions and
negotiations from an early-stage of the development process. It is also
emphasized that personnel in statutory bodies like NBA, PVP&FRA
and patent office‟s also be trained regularly to be able to exercise the
provisions in the laws. In this paper, the analysis of TKDL in particular
emphasizes the need for more digital databases related to agriculture in
particular agribiodiversity. These can link local information to global

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ICAR-National Academy of Agricultural Research Management

levels through national platforms, and from one agency to another and

also evolve a constant vigil on IPR application claims. This vigilance

will help National Biodiversity Authority and other agencies to locate

any claims infringing on prior local knowledge, so as to oppose the

grant of IPR protection. These initial successes in combating several

claims on inventions based on health care systems should be

extrapolated into agriculture sector where most of technology advances

are based on TK. At the same time building awareness among the

stakeholders of this sector to codify traditional knowledge from the

informal sector to formal sector on similar patterns of TKDL may go a

long way in the balancing recognition of the traditional knowledge

holders and using it to create more

products and processes in agricultural sector.

 1Swaminathan,M.S 2007. Can science and technology feed the world in
2025? Field Crops Research 104, 2007 3–9.

 1 Ramanna, Anitha and Melinda Smale, 2004. Rights and Access to Plant
Genetic Resources Under India’s New Law. Development Policy Review,
22(4): 423-442.

 1 Lesser, William. (1998). Intellectual property rights and concentration in
agricultural biotechnology. AgBioForum, 1(2), 56-61. Available on the
World Wide Web: http://www.agbioforum.org..Accessed on March 2, 2013.

 1 Hari Babu Ejnavarzala.2010.DNA barcoding: access to biodiversity
and benefit –sharing policy issues in the Indian context. Current
Science.Vol.99.No5, 10 September2010. Pages 594-600.

 1 ICTSD.2007. New Trends in Technology Transfer and their implications
for national and international Policy. Pages 1-41.

 1 Kalpana Sastry,R.2007.Mechanisms for Protection of Agricultural
Innovations in India DESIDOC Bulletin of Information Technology, Vol.
27, No. 6, November 2007, pp. 3-11.

 1 The Preamble of National Innovation Act states as “An Act to facilitate
public, private or public- private partnership initiatives for building an
Innovation support system to encourage Innovation, evolve a National
Integrated Science and Technology Plan and codify and consolidate the law
of confidentiality in aid of protecting Confidential Information, trade secrets
and Innovation” Indian Innovation Act: trade and confidentiality. Kamakhya
Srivastava. October 8, 2008. Posted at:
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 1 Kochhar, Sudhir. 2008. Institution and capacity building for the evolution
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 1 The Science and Technology Policy. 2003. Govt. of India clearly states the
intellectual property rights have to be viewed as an effective policy

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105th FOCARS

instrument that will be relevant to wide ranging socio- economic
technological and political concepts.

 1 Rao,N.H. and R.Kalpana Sastry.2004. Towards a Policy for Management
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 1Ashok Gulati, Nicholas Minot, Chris Delgado, and Saswati
Bora.2005.Growth in high-value agriculture in Asia and the emergence of
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Small-Scale Producers to Markets: Old and New Challenges”. The World
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 1Sunda Ram Verma and Anil K Gupta. 2007. Breeding, benefits and bridges
with modern science: Giving innovative farmers their due, Paper presented
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Plant Genetic Resources for Food and Agriculture, Rome, 29 October 2007
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 1 Gaponenko, Nadezhda.2006. Methods and tools for future exploration and
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domain: a case of nanotechnology. Paper presented at Second International
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 1WIPO. Legislative Texts on the Protection of Traditional Knowledge.
Available at http://www.wipo.int/tk/en/laws/tk.html. Accessed on
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 1 As listed on Pages 33 and 34 in : Handbook on industrial property
information and documentation. as part of “minimum documentation”
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(pct) .At: http://www.wipo.int/standards/en/pdf/04-02-01.pdf

 1 Sunderajan, P. 2005. CSIR journals in compulsory reference list of patent
treaty. The Hindu, March 22,2005.

 1 Bahurul Islam, KM. 2011. Defending Traditional Knowledge Rights:
India's Legal Battles Against Turmeric, Basmati Rice and Neem Patents in
USA and Europe . August 2011.Publisher VDM Publishing .Pages 92

 1Traditional Knowledge Digital Library AYUSH.
Available at http://indianmedicine.nic.in/showfile.asp?lid=316. Accesses on
04.03.2013

 1CSIR chief stress on non-patent literature database. Business Line.
September 23, 2000.

 1Know Instances of Patenting on the UES of Medicinal Plants in India. PIB,
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 1 Sengupta, Nirmal (2007) Economic Studies of Indigenous and Traditional
Knowledge. Academic Foundation. ISBN81-7188-586-1.

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ICAR-National Academy of Agricultural Research Management

 1Free access to traditional knowledge library. Financial Express. Jul 14,

2006.
 1India‟s Traditional Knowledge Digital Library (TKDL): A powerful tool

for patent examiners. European Patent Office (EPO). 2009-02-24.

 1India Partners with US and UK to Protect Its Traditional Knowledge and
Prevent Bio-Piracy". Press Information Bureau, Ministry of Health and
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 1Traditional Knowledge Digital Library (TKDL).
Available at http://www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng.
Accessed on 05.03.2013

 1IIPTA, Avesthagen patent revoked. Available at

http://www.iipta.com/ipr/blog/avesthagen-patent-revoked-1005, Accessed on

07/03/2013

 1IPAIRS, Application status, Available at

http://ipindiaservices.gov.in/patentsearch/search/index.aspx, Accessed on

07.03.2013.

 1Tag Archives: Traditional Knowledge Digital Library (TKDL) database, Patent Grant for

Traditional Knowledge of India on Ginger Rejected by the British

Patent Office. Available at

http://biotechpatentattorney.wordpress.com/tag/traditional-knowledge-digital-

library-tkdl-database/. Accessed on 07.03.2013.

 1Indian Patent Office, Guidelines for processing of patent applications related

to traditional knowledge and biological materials. Available at

http://www.ipindia.nic.in/iponew/TK_Guidelines_18December2012.pdf.

Accessed on 06.03.2013.

ii R Policy Review, 22(4): 423-442.

iii Lesser, William. (1998). Intellectual property rights and concentration in agricultural bi
.9eptember2010. Pages 594-600.

v ICTSD.2007. New Trends in Technology Transfer and their implications for national and
international Policy. Pages 1-41.

viechnology, No. 6, November 2007,
vii The Preamble of National Innovation Act states as “An Act to facilitate public, private or public-
private partnership initiatives for building an Innovation support system to encourage Innovation,
evolve a National Integrated Science and Technology Plan and codify and consolidate the law of
confidentiality in aid of protecting Confidential Information, trade secrets and Innovation” Indian
Innovation Act: trade and confidentiality. Kamakhya Srivastava. October 8, 2008. Posted at:
http://www.cafezine.com/depts/article.asp?id=21215&deptid=6.

ix T

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105th FOCARS

x

2006. ICAR Guidelines for Intellectual Property Management and Technology Transfer/
xii Rights Vol 15.Jan 2010.pp19-34.
exiii agriculture in Asia and the emergenc
3.2013.
n compulsory reference list of patent treaty. The Hindu, March 22,2005.
, KM. 2011. Defending Traditional Knowledge Rights: India's Legal Battles Against Turmeric,
xxiCSIR chief stress on non-patent literature database. Business Line. September 23, 2000.
Environment and Forests. May 6, 2010.
to traditional knowledge library. Financial Express. Jul 14, 2006.
stry of Health al
xxviiTraditional Knowledge Digital Library (TKDL).
, Accessed on 07/03/2013
http://ipindiaservices.gov.in/patentsearch/search/index.aspx, Accessed on 07.03.2013.
. Accessed on 07.03.2013.

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