A patent is a set of exclusive rights granted by a government to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of an invention. The person applying for a patent does not need to be the inventor who created or authored the invention.
Background – The term “patent” originates from the Latin word patere which means “to lay open” (i.e. make available for public inspection) and the term letters pattent (legal document), which originally denoted royal decrees granting exclusive rights to certain individuals or business.
Intellectual Property Right (IPR)
IPR is the right to control and derive the benefits from something one has invented, discovered, or created.
The importance of intellectual property in India is well established at all levels- statutory, administrative and judicial. India ratified the agreement establishing the World Trade Organization (WTO). This agreement, inter-alia, contains an agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which came into force from 1st January 1995. It lays down minimum standards for protection and enforcement of intellectual property rights in member countries which are required to promote effective and adequate protection of intellectual property rights with a view to reducing distortions and impediments to international trade.
Why patent is needed?
With the patent act, government grants authority to inventors for his invention for specific period. The inventor is given right to sell the product or to give permission to third party to do so far to get royalty. By granting a patent one can restore his creative idea to his own and on utility aspect; the benefits of the invention are open in public domain.
Today traditional medicine and complementary and alternative medicine play an increasingly important role in health care and health sector reform globally. Because of all these things need for protection of the traditional knowledge comes into picture.
Following are the important reasons for protection of this knowledge.
It is the important source of useful information, in the achievement of sustainable development.
It provides significant environmental benefits, possible commercial applications.
An important source of income, food, and health.
It is linked to genetic resources.
Essential to health of millions of people in developing country.
Only affordable treatment to poor people.
More than 80% population depends on it for health-care needs.
Healing properties of plants has been the source of many modern medicines.
It is necessary to protect contributions made by holders of traditional medicinal knowledge.
It is essential to prevent third parties from obtaining protection for such contributions not made by them.
In short following are the benefits of patent.
There are many ways to financially benefit from a patent. Patent may be sold outright to another for monetary remuneration. Person may also license his patent to one or more parties for a percentage of the sale price. Person may also be the exclusive manufacturer of his invention. Whether he has a business or an independent inventor, a patent is a valuable asset and is needed to protect him from unscrupulous individuals who could benefit from his hard work.
The public gain advance knowledge of technological developments which they will eventually be able to use freely once the patent ceases. Society in general benefits from constantly improving and better made products. In case of Ayurveda, more valuable concepts and formulations are useful to the society as it is open to society. e.g Arthritis formulation having good result is available to those people who suffer with unbearable joint pain.
It drives people for invention and to implement creative ideas for practical utility. It is useful to promote technological advancement, economic growth to uplift social status of nation.
IPR tools for protection of traditional knowledge
Patent protection: A patent is a document issued upon application by government office. Patent describes an invention and creates a legal situation in which the patented invention can normally only be manufactured, used, sold, imported with the authorization of the owner of the patent. The right created by a patent is monopoly right. Patents are given only for inventions.
In respect of patent protection, Traditional medicinal knowledge holders have to face two main problems. Both are related to the patentability standards of novelty or inventive step.
- Certain aspects of traditional medicine may be known and therefore not new and do not involve an inventive step, therefore not patent able.
- To prevent others from obtaining patent protection if certain aspects of Traditional medicines are publicized then due to its publicity that aspect of Traditional medicine is again not new or does not involve inventive step.
Trade secret Protection, trademark protection, are also important for traditional knowledge protection.
Geographical indication: A geographical indication points to a specific place or region of production that determines the characteristic qualities of the product that originates therein. It is important that the product derives its qualities and reputation from that place. Since those qualities depend on the place of production, a specific “link” exists between the products and their original place of production.
Non patentable items:
Sui Generis Systems of Protection:Because of the difficulties identified above in the application of intellectual property to traditional knowledge including traditional medicine there have been calls for the establishment of a sui generis system for the protection of traditional knowledge.
A sui generis system separate from the existing IPR system should be designed to protect knowledge, innovations and practices associated with biological resources.
Keeping publics interest in view the following are Non patentable
- Discovery of scientific principle
- Invention harmful to society
- Methods of Agriculture and Horticulture
- Process of treatment to human, plants and animals
- Diagnostic, therapeutic, surgical methods for treatment
- Atomic energy
- Plants and animals – essentially biological process for production of plants and animals except microorganism
- Invention which cause disruption of public order or morality and environmental damage.
Types of patent
- Process Patent
- Product Patent
- Utility Patent
- Product Patent Formulation
Current efforts to protect traditional knowledge:
Attempts have been made towards protecting traditional medicines in developing countries. Increasing importance of traditional medicines is evident in the various attempts that have been made towards recognizing and giving it protection.
The role, local and national authorities can play in this domain is,
- Assisting in the documentation and publication of Traditional Knowledge as searchable prior art.
- Support proposals, to include traditional knowledge subject matter in the international patent classification.
- Assisting with and supporting the including of Traditional knowledge databases digital libraries in existing intellectual property information system.
In order to conserve and avoid disappearance of traditional medicinal knowledge, its documentation is highly important. Practitioners of traditional medicines or holders of traditional medicinal knowledge have expressed a wide range of views and needs in relation to the protection of such medicine or knowledge.
Protection of traditional knowledge: Indian initiative
Struggle for revocation of turmeric and basmati patents lead to set up of permanent solution for the problem of traditional knowledge protection.
Concept of Traditional Knowledge Digital Library (TKDL) had emerged for the protection of existing knowledge base. National Institute of Science Communication and Information Resources (NISCAIR), Council of Scientific and Industrial Research, (CSIR), Ministry of Science & Technology, Department of AYUSH, Ministry of Health and Family Welfare collaborated develop TKDL.
TKDL involves documentation of the knowledge available in public domain on traditional knowledge from the existing literature related to Ayurveda, Unaani and Siddha, in digitized format in five international languages. Traditional Knowledge Resource Classification (TKRC), is an innovative structured classification system for the purpose of systematic arrangement, dissemination and retrieval of knowledge. Presently TKDL has completed database of 59,000 Ayurvedic formulations and total 1,10,000 formulations.
The Government of India in respect of sui generis protection is working out systems at the national level. The subject matter protected under these laws varies from artistic designs, to traditional knowledge associated with biodiversity, to only traditional knowledge of indigenous peoples that is not associated with biodiversity.
Culturally, the Indians believe in a system where knowledge is considered free. It is also considered to be the duty to transmit knowledge from generation to generation-which is reflected by the basic structure of the educational system of the gurukula. This clause has the potential to be significant in practice given the existence of various indigenous systems of medicine in India.
In spite of huge traditional knowledge, lacking in precise documentation of this traditional wealth, which become big threat to prove as originated from India. The pressing need of hour is to document the indigenous knowledge related to Indian herbs and plants and their medicinal properties and other utility. This should be stored in the form computerized database for easy access and to secure patenting rights. This will lead to keep away other countries from patenting Indian tradition of knowledge.
Similarly documentation of rare texts and other valuable information available in the form book should be converted into digital form. This technically stored data will be available to interested sectors of the world in easy accessible manner. AyuSoft indirectly helps generation of evidence base for many valuable principle, concepts and formulation available in oriental texts of Ayurveda.
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Last updated on March 8th, 2021 at 11:25 am