Saturday, 29 January 2011

'Intellectual' War

Is it over and again Intellectual challenge in form of financial benefit?
This might not be very exaggeration if someone puts it like that!
It is well known (and also accepted) that Indians are more meritorious and intellectually ahead than the native Americans & Europeans. No, I am not commenting from any prejudice, but several surveys are there to present the stated fact.
But for past 15 years Developed nations (mostly USA and EU) have tried to throw challenges to India by owning patents on several products which is originally Indian and falls under ‘Traditional Knowledge!’
Intellectual Property Rights is an emerging aspect of international business. Management of IPRs has become one of the major attributes of M&A, Take Over or JVs! To protect the business interest of every nation, TRIPS (Trade Related Aspects of Intellectual Property Rights) has come into force under WTO! Most of the nations are signatories of the same! Yet violation is taking place in every second day! Copyrights, Geographical Identification, Trademarks are not that badly hit as in the case of patents! And India is the worst hit!
So, what is a patent?
It is a product or process which includes innovative step, industrial application, novelty and which must not fall under the ambit of ‘prior use’. Patent is generally granted for 20 years and governed by Indian Patent Act, 1970, (Amended in 2002).
WIPO has defined patent as “an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.” []

But surprisingly enough, while granting patents, many a times ‘prior use’ and ‘novelty’ have been looked down upon! The little example of that Basmati, Neem, Haldi (Turmeric), fennel, coriander, cumin, sunflower, peanut, reri (castor) all have been patented by USA and EU companies!! (Though some of them revoked later).

Before going into past, first let see the most recent one!
Lal Dantmanjan (Red Herbal Gentifrice) has been patented by Colgate-Palmolive in USA! Yes, it is the same Dantmanjan which reminds millions of Indians about ‘Raju & Masterji’ TV Commercials by Dabur! And which categorically falls under the age-old practice of Indian Ayurveda, which means Lal Dantmanjan is a Traditional Knowledge and is in public use for decades.
Colgate-Palmolive got the patent this year in June in USA. The same company has filed for patent of this product in India too in 1995. But that is yet to be granted.
The Secretary of ‘The Association of Manufacturers of Ayurvedic Medicines’ (Amam) is of the opinion that India must apply for ‘post grant’ objection sighting the example of Traditional Knowledge. And India’s application must be cancelled on the ground of ‘traditional knowledge.’

But Traditional Knowledge of India has developed a peculiar ‘tradition’ of being patented outside the country!

It began all with Neem. In 1995 the patent was granted to WR Grace and US Department of Agriculture. After severe opposition from various Indian groups, it was cancelled in 2005 on the ground that the invention was not ‘novel’ and was in ‘public use’ in India.

Turmeric was next on the line. Two NRI associated with Mississippi Medical Centre, Jackson was awarded patent on Haldi by USPTO. For ages, this has been in use in India for curing various diseases. Vehement protests by India forced the patent office to‘re-examine’ and it found that it falls under ‘prior art’, thus, not patentable!

Wheat too was patented by Monsanto, European Patent Office (Munich Office) granted the patent in 2003. Later, with the help of PIL in the Supreme Court of India and Greenpeace Organisation, India was successful to get the patent cancelled.

The fragrance of Basmati is still a buzz word in the Patent circle. USA Co. Rice Tec was granted patent of Basmati under the brand name of ‘Texmati’ and ‘Kasmati.’ With much effort India was able to prove that Basmati was long-grain scented rice which has specific geographical origins in India. Both Texmati and Kasmati are none other than variants of Basmati: India has successfully proved that point in the ‘post grant opposition’ appeal. So after much debate and thorough re-examination Basmati patent was partially revoked (grain-specific claim of Rice Tec was struck down by the Patent office) and it was stated, “Rice Tec would not be able to block the country’s (India) Basmati Rice export to US; it could, however, produce ‘similar or superior grains’ outside India.”

Though India is yet to file cases against the patent of Isabgol: Psyllium Husk, Saunf: FENNEL, Dhania: CORIANDER, Jeera: CUMIN, Surajmukhi: SUNFLOWER, Moongphali: PEANUT, Arandi, Reri: CASTOR, Karela (Bitter gourd), Jamun and Brijnal, Jar Amla: Phyllanthus Niruri, various countries of Europe, Asia and USA have already patented these products and they are enjoying the huge economic benefit from these products. [courtesy: Allahabad High Court website]

To some critics, this is happening over and again because of the difference in the patent law of USA and India. According to law firm Sagar & Suri, “India first examines a patent application, then widely publishes it for third parties to challenge, and only then grants the patent. However, the US keeps the patent application a closely guarded secret and grants it without allowing other parties to challenge it. After the patent has been granted, third parties are then allowed to petition against the patent. This shortfall in the patent process in the US that ultimately needs to be revised to prevent future cases like this (Basmati) from occurring.”

In 1995, when ‘modified’ GATT was resurfaced in the form of WTO, various developing nations had shown their concern for their Business and Commerce prospect. Especially Third world countries faced the “intellectual challenge’ from the developed nations. As IPRs are ‘golden hen’ in the business circuit, countries like USA, EU have used their clout and patented various products/processes which in actuality have separate origins. Left wing parties raised these issues of ‘Economic abuse’ when India became member of WTO!

TRIPS agreement is not enough successful in protecting the IPRs of the developing and under-developed nations. Much stricter regulations need to be imposed to prevent the abuse of IPRs.
Experts believe, disclosure of the source and country of origin, evidence of prior informed consent by concerned national authority and fair sharing of benefit must be incorporated in the patent application form itself.

And where India stands today?

In the second amendment of Patent Law of India in 2002, disclosure of source and GI was made mandatory for applying patent within the country. Revocation of patent is incorporated if disclosure is not done or given inaccurately. Further to prevent patents based on TK, which is not always in written form, provisions have been made to include anticipation of invention by available local knowledge, including oral knowledge, as one of the grounds for opposition and for revocation of patent.

For protection of traditional knowledge Biodiversity Act of 1999 has been enacted. Sui Generis System, electronic database of TK (mostly of medicinal plants) i.e. Traditional Knowledge Digital Library (TKDL), power to oppose and give prior approval for patenting by NBA have become operational under this law.

Still, the numero uno ‘Emerging Economy of the world’ is yet to achieve the desired success rate in the protection of IPRs. Indian IPR laws should be more stringent not only in paper, but also in practice!

India has proved its genius and intellectual capital to the western world in various manners. In this new kind of ‘Intellectual War’, the hope is that India will emerge as a Champion yet again!!

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