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Devinder Sharma

THERE is excitement in the air. India's proposal of setting up a `Traditional Knowledge Digital Library' (TKDL) has been selected for a pilot study in 170 countries. And even before the ink has dried, digital library is being hailed as the answer to the ever-growing threat of biopiracy of traditional knowledge and folklore.

The digital library of traditional knowledge will have some 35,000 slokas or verses drawn from the available literature on Ayurveda. It will, in addition, have 1,40,000 pages of information, which will be easy to retrieve. These CD roms will be made available to each of the patent offices worldwide with the hope that the patent applications will be matched with the details provided so as to ensure that a patent is not granted on something that was traditionally known.

On the face of it, the digital library seems to be a wonderful weapon against biopiracy. After all, public outcry and outrage against some of the better known cases of biopiracy or thefts of traditional knowledge could have been avoided if those who granted these patents knew that the medicinal or insecticidal properties of these plants were widely known among the traditional communities in the developing countries. In technical parlance, these patents were based on `prior art'.

In a world where profit and greed have become the new economic mantra, private companies will go to any extent to manipulate what is already known to be an invention or a novelty.

Any tinkering of the original medicinal remedy with a little cosmetic covering can be easily presented as a novel product that was not previously known. It has happened in the past. For every successful revocation of a patent, whether it is neem, turmeric or ayahuasca, there are at least a thousand others that simply go unnoticed.

The TKDL Task Force itself was astounded to learn that of the 4,896 references on 90 medicinal plants in the US Patent and Trademark Office (USPTO) database, 80 per cent of the references pertained to just seven medicinal plants of Indian origin. In other words, nearly 4,000 patents or patent applications are based on the medicinal properties of plants that were already known. The Task Force studied the patents and interestingly found that 360 of the 762 patents on medicinal plants that were granted by USPTO could be easily categorised as traditional.

Does it mean that once the digital library is in place, the USPTO will strike down these faulty patents? No. Does it mean that the USPTO will ensure that in future no such patents are granted? No, again. After all, what is available in the Ayurveda verses is not scientific decoded language of the medicinal properties of the native plants. What is presented before the patent offices, on the other hand, is mired in technical details and legal complexities difficult to easily decipher.

There are patent applications pending before the USPTO, for instance, which run into 1,000 pages. It has already been said that a complete examination of this patent application alone will not be complete before 2035!

The proposed digital library will, therefore, only help the companies easily scout for the commercial uses of the medicinal and therapeutic properties from the database. A minor tinkering or value-addition will qualify for a patent. And then, how will the infringement be checked, is something that has been left to interpretation. Even in a country where patent and theft of intellectual property rights has become an emotive issue, it has been difficult to fight the piracy of such traditionally known products as basmati rice. The Commerce Ministry has, in fact, issued a circular saying that it has no money to take the basmati battle any further. If the Government has no money and the political will to challenge and fight the patent on basmati rice, which is a culturally and politically sensitive issue, it is futile to expect any meaningful challenges to any more cases of biopiracy.

To challenge and fight the patent infringements is simply prohibitive. In the case of basmati rice, the challenge came only from India while the scented rice is also grown in neighbouring Pakistan. Despite first making claims that it too will join the battle against basmati rice, Pakistan withdrew when the cost of the legal battle worked out to around $3,00,000. Not only the developing countries, even the rich industrialised countries find it difficult to fight the legal patent battles in the US courts.

A British company BTG, for instance, had filed a case for patent infringement over the use of hovercrafts in use by the Pentagon. BTG won and the Pentagon was forced to pay $6 million in penalties. But the lesser-known fact is that the company had spent a whopping $2 million towards lawyers' fees.

Even adequate protection and safeguards, as spelled out under the National Biodiversity Act, and in the Patent (Second Amendment) Bill 1999, does not guarantee that such patents will not be drawn abroad. In India, the grounds for rejection of the patent application as well as revocation of the patent include non-disclosure or wrongful disclosure of the source of origin of biological resource or knowledge in the patent application, and anticipation of knowledge, oral or otherwise.

In the absence of any global safeguards, the digital library will become a much-wanted source of information on bio-prospecting for the private companies. If such libraries are constructed all over the world, the private companies will surely laugh their way to the banks. And as to why the World Intellectual Property Organisation (WIPO) and the UNCTAD are showing so much interest in creating the database for traditional knowledge, the answer is obvious. Both these organisations are pushing for a system that legalises the monopoly control over what is traditionally known.

Documenting traditional knowledge has to be, therefore, seen in national interest primarily before any move is made to make the community knowledge accessible.

To say that such initiatives will come with benefit sharing is to duck the real and sensitive issues linked to its theft and misappropriation. Perhaps, stopping the documentation process and the subsequent creation of the digital database can best do this.

The only other plausible approach is to do what the Chinese did. Between 1992 and 2000, China revised its patents laws twice to ensure that it could draw intellectual property control over its unique system of medicine.

China has drawn a total of 12,000 patents on its medicine system and, therefore, does not have to worry about constructing a digital library.

(The author is a New Delhi-based food and trade policy analyst. Feedback may sent to dsharma@ndf.vsnl.net.in)

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