Traditional Knowledge refers to skills, practices and knowledge that have been passed down from generation to generation and have become an integral part of communities, perhaps their identity too. The communication of traditional knowledge across generations is fundamental to protecting and promoting indigenous peoples’ cultures and identities and as well as the sustainability of their livelihoods.[1]
Although these customs have traditionally been freely exchanged across groups, the contemporary world is coming to understand the necessity of protecting such information, especially in light of the fact that it may be exploited by outside parties. Due to this change, traditional knowledge and intellectual property rights (IPR) are now intersecting, and legal frameworks are being created to guarantee that communities maintain ownership of their knowledge, get proper credit for it, and profit financially from the contributions they have made to culture.
Frameworks which protect Traditional Knowledge
Many laws and frameworks have come into existence to protect Traditional Knowledge and to prevent its unfair use and commercialization. The first international initiative to recognize the importance of local and indigenous populations in the preservation and sustainable use of biodiversity is the Convention on Biological Diversity. The Convention places broad requirements on the preservation, sustainable use, information exchange, and fair distribution of benefits resulting from biodiversity. Another framework regarding this is the ‘Nagoya Protocol’ which came into force on October 12, 2014 is an agreement under international law, entered into by over 70 countries around the world. It functions in the context of the Convention on Biological Diversity (CBD), and aims to implement one of its central objectives: the fair and equitable sharing of benefits derived from the utilization of genetic resources.[2]
Another step in the direction of protecting Traditional Knowledge was when the members of WIPO agreed on the WIPO TREATY ON INTELLECTUAL PROPERTY, GENETIC RESOURCES AND ASSOCIATED TRADITIONAL KNOWLEDGE on May 24, 2024 in Geneva. The Article 3 of this treaty deals with a disclosure requirement. The agreement mandates that individuals seeking patent rights for genetic resources must reveal the origin of those genetic resources. This is frequently found in locations like herbariums or gene banks. For patents "derived from" traditional knowledge, applicants are required to reveal the Indigenous peoples and local communities that contributed to it. If the origin of this is uncertain, the applicant needs to reveal its source. At times, the applicant is not aware of the origins of the genetic resources or traditional knowledge. In such instances, they need to openly admit that they truly have no knowledge of the origin. It is anticipated that patent examiners will offer assistance in order to aid applicants in meeting the disclosure obligation. Opportunities to rectify any failures in disclosure should also be given by them.[3]
Traditional Knowledge with respect to Patentability in the Indian Sense
From appreciating the importance of this knowledge to investigating its suitability within modern intellectual property regimes, the idea of patentability becomes evident. Technology breakthroughs and innovative innovations are structurally protected by patent law, which places a strong focus on novelty, non-obviousness, and practical value. There are advantages and disadvantages to incorporating conventional knowledge into this framework. The advantages include increased patentability, but there are also hurdles to be overcome, such as the need to protect and preserve the innovations' original sources.
The Indian Patent Act of 1970 has specific provisions to prevent the misappropriation of traditional knowledge, which is an integral part of the country's cultural and biological heritage. Section 3(p) of the Indian Patent Act explicitly states that traditional knowledge, even if it has been modified or adapted, is not patentable. Section 25 deals with opposition to the grant of patents. This section provides for both pre-grant and post-grant opposition, outlined in subsection (1) and subsection (2), respectively. Section 25 (1) (k) states that if the invention claimed in the patent application is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere, a pre-grant opposition can be filed to prevent the grant of the patent. Section 25 (2) (k) states that if the invention was publicly known or publicly used in India before the priority date of the patent, including traditional knowledge available in India or elsewhere, a post-grant opposition can be raised.[4]
While restrictions on patenting inventions based on traditional knowledge are essential to prevent biopiracy and ensure fair use of indigenous resources, these regulations have often led to significant disputes. A notable example of such a dispute is the Jeevani patent case, which highlights the tension between protecting traditional knowledge and the commercial interests of corporations. Jeevani is a herbal remedy derived from the Arogyapacha plant (Trichopus zeylanicus), traditionally used by the Kani tribe of Kerala, India, for energy and vitality. The Kerala-based Tropical Botanic Garden and Research Institute (TBGRI) collaborated with the Kani community to develop Jeevani, and a patent was filed for the formula. The agreement between the researchers and the Kani tribe was groundbreaking, as it involved sharing the benefits from the commercialization of the product with the indigenous community. Specifically, 50% of the licensing fees and royalties were allocated to the Kani tribe through a trust fund.[5] What led to this benefit-sharing was a drug that could fight fatigue and stress, enhance immunity and protect the liver. This case set a precedent for benefit-sharing arrangements in patents based on traditional knowledge, advocating for the ethical use of indigenous resources and knowledge in bioprospecting. It underscored the importance of recognizing and compensating traditional knowledge holders, paving the way for policies like India's Biological Diversity Act of 2002 and influencing global frameworks such as the Nagoya Protocol.
Another way to address objections related to traditional knowledge in patents is by demonstrating that the innovation goes beyond a simple combination of existing knowledge. It is essential to show that there is a degree of invention involved, meaning that the patented product or process introduces something novel and non-obvious. This could involve an inventive step that significantly transforms or enhances the traditional knowledge in a way that would not have been apparent to someone skilled in the relevant field. By proving this inventive aspect, it becomes clear that the innovation is more than just a mere compilation of known elements.
Bringing it all together, the intersection of traditional knowledge and intellectual property rights reflects the growing recognition of the value that indigenous communities bring to global culture, biodiversity, and innovation. However, the challenge remains in balancing the preservation of this knowledge with modern intellectual property regimes, such as patent law. Striking this balance requires not only legal safeguards against misappropriation but also a demonstration of inventive steps that distinguish new innovations from mere adaptations of traditional practices. Through such measures, it is possible to protect indigenous knowledge while fostering innovation in a respectful and ethical manner.
