India Environment Portal Knowledge for change

Knowledge without power

• 29/09/1997
• Down To Earth

THERE is euphoria at the Council for Scientific and Industrial Research (CSIR), the New Delhi-based government institute, over the decision by the us Patent and Trademark Office (US PTO) to withdraw its patent no 5401504 for the use of turmeric powder as a wound-healing agent on August 13. The move has caused a wave of publicity across the country and CSIR is riding high on its crest. But there is little ground for this uproar. The effectiveness of the withdrawal in helping protect traditional systems of knowledge in India is doubted by many.

"It happened because CSIR took the initiative to challenge the patent on the ground that the use of turmeric is known in India for centuries, therefore, the invention was not new," exudes R A Mashelkar, director general of CSIR . "This success story should send strong signals...that there is nothing to fear about protecting our traditional knowledge base... and should remove unfounded fears about India's helplessness over preventing piracy of bioresources." CSIR has certainly notched up a victory, but there are some who feel that Mashelkar's enthusiasm is perhaps a little overstated. "If Indians themselves were strong and competitive players in the field of commercialisation of these resources, then the cancellation of this patent would have been truly meaningful. But they are not. So why the excitement?" asks V P Sharma, director, Malaria Research Centre, New Delhi.

On the other hand, a look at the us patent database reveals that the myriad properties of the turmeric plant Curcuma longa ( haldi , as it is commonly known in India) have been studied quite seriously and put to commercial use in North America. The patent in question was granted by the us pto on March 28, 1995, to Suman K Das and Hari Har Cohly, researchers attached to the University of Mississippi Medical Center, Jackson, Mississippi. Chronologically, it appears at the tailend of 11 other patents that have been granted by the us pto (see box). Seven of these have been granted to private companies, three to individual inventors, and two - including the controversial no 5401504 - to research institutes.

"Quite dismal" is how B S Parmar, senior scientist at the Indian Agricultural Research Institute ( IARI ), describes the patent scenario in India. Parmar has been engaged in extensive research on bioresources. "As far as I know, no patents have been granted on any process using haldi by the Indian Patent Office," he says. Under the existing Indian patent law, only the manufacturing process - and not the products - can be patented. Turmeric or any other material of plant origin or products derived from them do not fall under the purview of the Indian Patents Act. Pharmaceutical or cosmetic companies, such as Vicco Vajradanti, manufacture and sell haldi -based products over-the-counter by acquiring a manufacturing license from the drug licensing authority.

"They are not interested in launching any new product. They sell their wares as Ayurvedic drugs, which do not require patents," explains Parmar. This is not to say that researchers in India have displayed no interest at all in dabbling with haldi . " iari scientists have developed a process of using haldi as a stabilising agent and have submitted a thesis on it. It was completed two years ago. I do not know what the higher authorities are doing about it," says Parmar. He says neither he nor his colleagues have ever thought of approaching business houses with their invention to try it out on a commercial basis. " We still have to put in a lot of work on the project to make it look attractive and viable to businesses. And we do not have enough money available for this kind of research."

Usha Menon of the government-run National Institute for Science, Technology and Development Studies, New Delhi, is convinced that this is the gap that needs to be plugged if our traditional knowledge base is to be "saved". Menon was a member of the team set up by the ministry of environment and forests to draw up the country's national action plan on biodiversity. As a signatory to the Convention on Biological Diversity (cbd), India is obliged to put in place certain policies and regulations to protect its bioresources and traditional knowledge systems related to their use. This includes enacting a comprehensive biodiversity legislation.

"I am convinced that the wealth of genetic resources that India possesses can be protected and enhanced only if it is utilised. Our rich heritage of traditional knowledge will thrive if it is explored and developed. This needs planning and concerted efforts. At present, neither the government departments nor the institutes even seem to think on these lines," complains Menon. She points out that csir has reportedly spent Rs 5 lakh in the entire process of challenging the patent in the us . And this was just one solitary case. "The money required to pursue csir' s strategy, that is contesting every patent application based on Indian cultural traditions filed anywhere in the world, would certainly prove to be expensive. Can we not instead plough in some money to promote commercially-focussed research?"

There are some other hitches in the csir plan of action. Among all the 12 patents registered in the us database, the claims made by the no 5401504 are the simplest and most rudimentary. The invention is described as a "method of promoting healing of a wound by administering turmeric to a patient afflicted with the wound". So it was fairly simple to convince the us pto that the use of turmeric in this particular manner was known for ages in India. The rest of the patents are all for compositions or complexes that contain ingredients other than turmeric.

Patent no 4263333, for example, has been granted to General Foods Corporation of Whiteplanes, New York, for inventing a complex process of preparation "formed by the reaction of curcumin, turmeric, with certain metal ions". It is used for colouring foods. In other words the invention is an improvement, albeit minor, on a certain property of turmeric. It cannot be branded as an infringement on Indian knowledge base even though haldi has been used as a colouring agent in India since time unknown. The csir strategy can only work in specific circumstances.

Also, the evidence provided by csir before the us pto to challenge the disputed patent was a paper published in 1953 in the Journal of Indian Medical Association by three scientists, M L Gujral, N K Chowdhury and P N Saxena. It was evidence of what is known as "prior art" (the availability of the knowledge at the time of patenting) documented in published scientific literature. But the mention of haldi as a wound-healing agent can be found in 200-year-old Ayurvedic scriptures that would have made the Indian case much stronger.

But csir had to use the former because under the us Patents Act, only very specific and limited types of prior foreign activity (outside the boundaries of the us ) can be used to invalidate a us patent. The Act lays down that a North American citizen shall be denied a patent if - "the invention was.... patented or described in a printed publication in a foreign country." So any activity that has taken place outside the us must be fixed in a tangible, accessible form such as in a printed publication or documented in a patent appellation submitted in a foreign patent office for it to be taken into consideration at all by the us authorities. And Ayurvedic scriptures cannot pass this test, and hence do not make conclusive evidence.

This spells doom for Indian traditional knowledge systems as they are most often communicated by word of mouth. For example, farmers in India have used an extract of neem known as azadirachtin as a pesticide for ages. But there is no documented evidence to prove this. The knowledge was passed down through the generations orally. "A petition based on behalf of the farming community did not stand a chance in the us forum," declares Suman Sahai, convenor of Gene Campaign, a New Delhi-based activist group. She is convinced that reacting to patents filed by others can, at best, provide temporary respite. A proactive strategy is the order of the day.

"If we are to stop others from patenting our knowledge systems, we must first assert our rights over them," she reasons. The cbd gives sovereign rights to member-nations over their bioresources and also asserts that traditional communities that hold the knowledge related to the use of these resources must get a slice of profits if they are commercialised. "We must use this forum to bargain - to declare that our indigenous knowledge base is our technology and any one who wishes to use it must pay a price." But first the Indian government must enact a national biodiversity legislation to legalise the rights of its people. "Only then can we effectively guard against the theft of our cultural heritage," she concludes.

• Tags:
  • Traditional Knowledge
  • Herbal Medcine
  • Patents
  • United States Of America (US)

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