[SPICY IP] India's TK database wins early successes at EPO

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Sumathi Chandrashekaran

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Nov 6, 2009, 3:03:18 PM11/6/09

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The Traditional Knowledge Digital Library (TKDL), recently reconstituted to form an independent entity within the Council for Scientific and Industrial Research (CSIR), has already achieved early successes in its mandate to "prevent the misappropriation of Traditional Knowledge" in the international patent arena.

Until now, many may have believed the potential of the TKDL to be merely academic, cloaked as it is in the linguistic maze of India's TK, bio-medical and other arcane histories.

But current statistics from TKDL may have changed all that, and indeed may bear enormous significance on the recognition of TK as a legitimate source of information, a position that India has had to fight for in the past in the IP arena.

What is equally important, and may tend to be glossed over as an "incidental expense", is the effective cost involved in using TK as a tool to prevent bad patents from being granted. (Drum roll) The cost, counting the recent successes achieved by the TKDL at the European Patent Office, as of now is, hold your breath, ZERO. More details below.

TKDL sniffs success at the EPO

According to data revealed by Dr V K Gupta, the 'architect' behind TKDL, re-designated now as the Director of the new TKDL unit, the TKDL has impacted at least 36 applications at the European Patent Office (EPO), with which the Indian entity has an access-sharing agreement. (Information available on the TKDL website, which shows only 32 applications, may be slightly older data.)

In two out of the 36 cases, the EPO set aside its decision to grant patents, within a period of two weeks of receieving evidence from the TKDL. This may have included the case of a patent sought by Perdix, a Spanish-owned multinational on a herbal-based remedy to address the depigmentation of skin (anti-vitiligo cream). According to the TKDL website, the EPO has since re-opened that case for substantive examination. Note also that these invalidations were made at NO cost, as against conventional costs of some hundred thousand USD, if not more, and requiring the better part of a decade to resolve.

There is further information that in two other cases, applicants unilaterally withdrew their applications upon being informed of TKDL evidence. At least one of these is Unilever, the multinational conglomerate which also has a very strong Indian presence.

The TKDL appears confident that similar successes will be achieved in a significant majority of the remaining cases.

Does open-access TK prevent biopiracy or facilitate it?

However, there hovers in the air a word of caution about opening up access to the traditional knowledge resources of any country or community, and the potential misuse that can be made of such a resource. (Image from here)

One such voice comes from RS Praveen Raj, a frequent commentator on SpicyIP, who writes on his blog:

"It is hard for the Patent offices to keep the contents of TKDL secret from third parties, since no patent could be denied without disclosing the entire gamut of coded TK associated with the invention to the claimant.... It is going to be a great opportunity for the fraudsters to file patent applications purely on conceptual grounds (which would look like as if they had performed the invention), only to see that they could fetch the authentic information on a TK practice/product."

One counter-argument to this could lie in the fact that a resource like the TKDL has merely expanded the audience of published texts that contain references to traditional knowledge. Assuming that evidence of prior art, regardless of its regional or linguistic origins, remains a ground for invalidating a patent or an application, there may be little to worry about.

TKDL and the world, and WIPO's renewed mandate

Arguably, the TKDL story is also a boost for WIPO's inter-governmental commitee (IGC) on TK, genetic resources and traditional cultural expressions. Recent months have seen the mandate of the IGC swing from abandonment to hope, and this Indian project may just have something going for it here.

India, while not the only country to have a strong TK base, may be the only one to have a resource like the TKDL which has collated multiple sources of information extant in multiple languages at one place in a manner that is easy to access to different categories of users. Not surprisingly, other countries are trying to devise a similar system for themselves, but no one appears to have been as successful. Perhaps it is time to initiate a open-learning process as well, where India can share her experience in what continues to be an expansive task.