Role of patent act in protecting

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ROLE OF PATENT ACT IN PROTECTING & PRESERVING TRADITIONAL KNOWLEDGE By: ASHMITA SAHA Roll No. 11 M. PHARM, 2ND SEM Dept. of Pharmaceutical Science Dibrugarh University 1

TRADITIONAL KNOWLEDGE : 

TRADITIONAL KNOWLEDGE 2

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The World Intellectual Property Organization (WIPO) defines traditional knowledge as “indigenous Cultural and intellectual property, indigenous heritage, and customary heritage rights.” Local communities have always generated specific Knowledge which has been used for shorter and longer periods and informally passed from generation to generation, which includes knowledge of:- Plants, animals and their properties Minerals, soils and their properties. Combinations of organic and inorganic matters 3

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Traditional Knowledge (TK) received an increasing attention on the international agenda over the past decade. This is due to the following factors:- Recognition of its importance in the lives of the majority of world’s population. Conservation of biodiversity. Concerns about the rapid loss of TK & global cultural diversity. Concerns about unauthorized or inappropriate patenting. Use of TK with little or no benefit sharing with the original TK-holders. Interest in harnessing the potential of traditional Knowledge for local sustainable development. Increasing attention to indigenous rights. 4

NEED FOR PROTECTION AND PRESERVATION : 

NEED FOR PROTECTION AND PRESERVATION 5

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The empirical basis of traditional knowledge extends over many generations and provides scientific insights for even modern researchers. An erosion or loss of traditional knowledge will be felt by all since they offer potential pathways to meet future health challenges. Loss would be felt directly by communities themselves who maintain traditional medical system, not only for practical health care but a part of their cultural identities also. 6

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The valuable clues provided by TK save time money and investment of modern biotech and other industries into any research and product development. The recent UN declaration on the Rights of indigenous peoples, recognizes the right to maintain, control, protect and develop traditional knowledge including medicines, and to maintain traditional health practices. 7

INADEQUACY OF LEGAL SYSTEMS THAT ADDRESS TRADITIONAL KNOWLEDGE : 

INADEQUACY OF LEGAL SYSTEMS THAT ADDRESS TRADITIONAL KNOWLEDGE General issues relating to the protection of Traditional Knowledge. Granting of patents in respect of Traditional knowledge. 8

GENERAL ISSUES : 

GENERAL ISSUES 9

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Devolution: With demand for commercialization in modern world indigenous societies are being encroached upon faster than TK can be protected. Bio-piracy: It is the ever-increasing bio-prospective activities on behalf of ethno botanists, pharmaceutical companies and others who wish to profit from rich biodiversity and traditional knowledge in indigenous territories. 10

ILLUSTRATIONS: : 

ILLUSTRATIONS: 11

NEEM: : 

NEEM: This tree legendary has been used as a biopesticide and medicine in India for centuries.The European Patent Office (EPO) revoke in its entirety patent number 436257 which had been granted to the United State of American and the Multinational Corporation W.R. Grace for a fungicide derived from seed of the Neem tree. Despite Neem’s ancient tradition, over 12 US patents were recently taken out Neem-based emulsions and solutions. 12

TURMERIC: : 

TURMERIC: In 1993, the US PTO granted the University of Mississippi Medical Center patent rights over “healing a wound by administering turmeric to a patient afflicted with a wound.” But Turmeric has been used for centuries in India. The patent was eventually cancelled in 1998 after reexamination proceedings, but revealed to India and to indigenous societies around the world, how easy it was to falsely patent centuries-old traditional knowledge. 13

BIOPIRATED PLANTS- THEIR PATENTEE & PURPOSE : 

BIOPIRATED PLANTS- THEIR PATENTEE & PURPOSE 14

ROLE OF PATENT ACT : 

ROLE OF PATENT ACT 15

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Broadly patent is defined as exclusive rights granted for an invention that offers a new technical solution to a specific problem. Patent system can be used as defensive measure against misappropriation of traditional knowledge Due to the improper and unstandardized documentation of traditional knowledge, patents are often granted to parties who are traditionally not the owners of this knowledge, thereby, leading to conflict in trade interests of the parties involved. Moreover, a part of the profits made by the patent holders also does not flow back to the holders of traditional knowledge, thus leading to discontent amongst the latter 16

ROLE OF INTERNATIONAL REGULATION : 

ROLE OF INTERNATIONAL REGULATION Major international regulations effecting the protection of Traditional Knowledge are: Convention on Biological Diversity (CBD) Trade Related Intellectual Property Rights (TRIPs). 17

THE CONVENTION ON BIOLOGICAL DIVERSITY: : 

THE CONVENTION ON BIOLOGICAL DIVERSITY: Only binding international agreement that contain explicit reference to Traditional Knowledge Seeks to promote the conservation of biodiversity & the equitable sharing of benefits arising out of the utilization of generic resources. Asserts the sovereign rights of nations over their resources & right to determine access according to national legislation facilitating their sustainable use & common use of these resources 18

TRADE RELATED INTELLECTUAL PROPERTY RIGHTS : 

TRADE RELATED INTELLECTUAL PROPERTY RIGHTS It is an important international agreement, which:- Obliges new standard for various types of IPRs. Includes the multilateral trading system in which trade law and jurisprudence are taken in consonance with Intellectual Property Law and provides for effective dispute settlement process by WTO. Includes detailed standards for domestic enforcement of IPRs, both within as well as across the borders of a country. Obliges protection on IPRs related to food, medicine and drugs in developing countries. Provides for higher level of protection for geographical indications and reversal of burden of proof for process patentees. 19

RELATED CONTROVERSIES : 

RELATED CONTROVERSIES Although, CBD provides for access and sharing of biological resources on one hand and TRIPS provides for exclusion of plant and animal material from patenting, yet, there has been controversies like: The patenting of ancient herbal remedies the US Patent (No. 5,401,504) given to the healing properties of turmeric, known for centuries to Indians. The US Plant Patent (No. 5751) on the "Ayahuasca Plant", which is considered sacred and used for medicinal purposes by Amazon's indigenous people. 20

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The patenting of crop varieties whose name is similar to those grown for centuries in certain geographical areas, for instance, the term Basmati used by US Firm Rice-Tec Corporation (Patent No. 5,663,484). The term Basmati is used for certain varieties of rice grown in Northern India. The patenting of human genetic material, for instance, on the human cell line of Hagahai tribesmen from Papua New Guinea (US Patent No. 5,397,696). 21

Sui generis SYSTEM : 

Sui generis SYSTEM A longer term solution for the protection of Traditional Knowledge that have been the call of the developing world & others is the international Sui generis system. The term (Sui generis) means of its ‘own kind’. A plausible option would be the development of an international framework that recognise protection of Traditional knowledge at regional & national levels. Brazil was first in establishing this system for protection of Traditional knowledge. 22

FINALLY: : 

FINALLY: The justification for the protection of Traditional Knowledge is to stimulate innovation and reward the intellectual property holder for a limited period of time before the benefits of the innovation are to be made available to the society. The key debate remains stuck on the issue of whether to extend the family of intellectual property to include traditional knowledge or not. In practice however the issue has been resolved. States have decided in adhoc ways to protect traditional knowledge and are now seeking ways to make that protection effective in a global market. In these circumstances it is hard to argue that international protection should only be afforded to traditional intellectual property and not to traditional knowledge. A balance will have to be found between the promoters of the international protection of patents and trademarks and the promoters of the protection of traditional knowledge. 23

REFERENCES: : 

REFERENCES: Preserving protecting & promoting Traditional Knowledge: National actions &International dimensions. -Dr.Sophia Twarog Issues relating to Traditional knowledge systems & Intellectual Property rights -Meeta Biswal www.protectingTraditionalknowledge.mht 24

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Thank you 25