DR. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY LUCKNOW
PROJECT ON (The effects of protecting traditional knowledge) knowledge)
(UNDER THE SUPERVISION OF ASST.) INTELLECTUAL INTELLECTUAL PROPERTY RIGHT-II
SUBMITTED TO:
SUBMITTED BY:
ASST. PROF. FACULTY OF LAW ROLL NO: 62 DSMNRU, LUCKNOW B.COM.LL.B(HONS*) 3nd YEAR (6th sem)
TABLE OF CONTENTS 1. Introduction. 2. Definition of traditional knowledge. 3. Importance and scope of traditional knowledge. 3.1 scope of TK 3.2 limitation of TK 4. Protecting of traditional knowledge. 4.1 reason of protection 4.1.1 equity 4.1.2 conversion 4.1.3 promoting use and development 4.2 methods of protecting and conversing of TK 5. Challenges in protecting traditional knowledge. 6. Sources of traditional knowledge. 7. Biopiracy or traditional knowledge. 8. Strategies. 8.1 application of existing IPRs 8.2 designing an IPRs sui genic regim. 8.3 Enforcing customary laws. 9. Conclusion 10. References / Bibliography
AKNOWLEGEMENT
I would like to express my gratitude towards our h onourable Intellectual Property Rights teacher Asst. Pro. Shail Shakya, who has given us such a wonderful topic to make a project. Lastly, I would like to thank all those were there either directly or indirectly related with me and helped me while making the project.
INTRODUCTION
TRADITIONAL knowledge (TK) is a term generally applied for any knowledge generated outside the context of modern western knowledge and covers a large amount of distinct subcategories, which in extreme cases might have little or nothing in common1. TK can involve cultural expressions, ecology, agriculture, medicine, construction technologies, environment, etc. and have generally been passed on from generation to generation pertaining to a particular people or territory, and is constantly evolving in response to the changing environment. It may be written down or transmitted only orally. TK can be held by individuals, communities or society as a whole. TK can make an important contribution to analyse the environmental conditions within a specific region as it is indigenous to specific geographical areas. However, TK is at the risk of becoming extinct because of the rapidly changing natural environments, fast paced urbanization, invasion of technology, lack of awareness and language barriers. Preservation of TK is vital as it can contribute largely towards developing improved strategies by identifying cost-effective and sustainable mechanisms. Traditional knowledge can be integrated with scientific knowledge or it can be used as a basis for new research projects in the broad context of sustainable development. Modern technologies can be more successful and sustainable if TK is taken into consideration. India is rich in genetic resources and associated traditional knowledge and has been identified as one of the countries with mega biodiversity. Traditional knowledge has been used for centuries by Indian indigenous and local communities and has been the mainstay of their existence, especially in key sectors of food and health. In addition, TK also plays a vital role in the conservation of biodiversity in the country. Recently, international attention has turned to the use of intellectual property laws to preserve, protect and promote traditional knowledge. Three broad approaches have been developed. The first emphasizes protecting traditional knowledge as a form of cultural heritage. The second looks at the protection of traditional knowledge as a collective human right. The third, taken by the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) investigates the use of existing or novel measures to protect traditional knowledge2. Recognizing traditional forms of creativity and innovation as protectable intellectual property would be an historic shift in international law, enabling indigenous and local communities as well as governments to have a say over the use of their traditional knowledge by others. This would make it possible, for example, to protect traditional remedies and indigenous art and music against misappropriation, and enable communities to control and benefit collectively from their commercial exploitation.
India and Traditional Knowledge
India is a country, which has been nurturing a tradition of civilization over a period of about 5,000 years. India’s ancient scriptures consist of the four Veda, 108 Upanishads, 2 epics, Bhagavad-Gita, Brahma sutras, eighteen Puranas, Manusmriti, Kautilya Shastra and smritis. Biologically speaking, India is one of the 12 most biodiverse countries of the world. With only 2.4 percent of the world’s land area, India accounts for 7 to 8 percent of the recorded species of the world. India’s diversified a gro-climatic a gro-climatic nature is a blessing. The whole world has 26 agroclimatic zones and India alone has 16 agro-climatic agro-climatic zones. India’s diversified agro-climatic agro-climatic zones start from the Trans-Himalayan region to the coastal areas of Kerala, Andaman and Nicobar, which are home to a varied range of medicinal plants like herbs, shrubs, tubers, mangroves and rhizomes. The Botanical Survey of India and the Zoological Survey of India have recorded over 47,000 species of plants and 81,000 species of animals. This multitude of natural wealth has created a renewed interest in the traditional medicinal system, which includes the Unani, Yoga, Ayurveda, Homeopathy and Siddha systems. The Ayurveda is the oldest and most effective of these alternative systems of medicine. The ancient scriptures of the Ayurveda are full of instances where herbs with medicinal properties were used not only for curative purposes but also for increasing physical and mental efficiency. Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture, and forestry. Many widely used products, such as plant-based medicines and cosmetics, are derived from traditional knowledge. Other valuable products based on traditional knowledge include agricultural and non-wood forest products as well as handicrafts.
DEFINING TRADITIONAL KNOWLADEGE
Is a precise definition of TK a precondition for any international negotiation on its possible protection or promotion? The different nature and forms of expression of the information embraced by TK, can make it difficult to agree on a legally and scientifically acceptable definition. Indeed, TK is one of several terms used to describe broadly the same subject matter. WIPO currently uses the term to refer to tradition- based literary, artistic or scientific works; performances, inventions, scientific discoveries, designs, marks, names and symbols, undisclosed information and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields5. The difficulty in defining TK should not be an obstacle to elaborating the conditions for the protection of such knowledge6. Patent law only defines the requirements for protection (novelty, inventive step, industrial applicability), while patents may refer to inventions in mechanical, chemical, electronics, biological and many other fields. Similarly, trade secrets involve any secret and commercially valuable information, and no further definition about their content is required for their legal protection. In TK, an operational concept may be based on the source of the knowledge (traditional and indigenous communities) and on its cultural specificity, rather than on the specific content of its components. For instance, “mola” is a traditional handmade textile work manufactured by cutting and stitching several layers of cloth to form a multicolored product. The “molas” have been traditionally produced by the native Kuna communities in Panama. Although imitations have been produced in Taiwan, “mola” clearly is a product of Kuna’s traditional knowledge knowledge which was developed as an expression of their own culture.
THE IMPORTANCE AND SCOPE OF TRADITIONAL KNOWLEDGE
THE IMPORTANCE :Traditional and indigenous knowledge (TK) has been used for centuries by indigenous and local communities under local laws, customs and traditions. It has been transmitted and evolved from generation to generation. TK has played, pla yed, and still plays, an important role in vital areas such as food security, the development of agriculture a griculture and medical treatment. However, Western societies have not, in general, recognised any significant value in TK nor any obligations associated to its use, and have passively consented co nsented to or accelerated its loss through the destruction o f the communities’ living environment and cultural values. R ecently, ecently, Western science has become more interested in TK and realised that TK ma y help to find useful solutions to current problems, sometimes in combination with “modern” scientific and technological kno wledge. Despite the growing recognition of TK as a valuable source of knowledge, it has generally been regarded under Western intellectual property laws as information in the “public d omain”, freely available for use by anybody. Moreover, in some cases, diverse forms of TK have been appropriated under intellectual property rights by researchers and commercial enterprises, without any compensation to the knowledge’s creators or possessors.
TK is a central component for the daily life of millions of people in developing countries. Traditional Medicine (TM) serves the health needs of a vast majority of people in developing countries, where access to “modern” health care services and medicine is limited by economic and cultural reasons. For instance, the per capita consumption of TM products is, in Malaysia, more than double that of modern pharmaceuticals. TM is also significant in more advanced developing countries such as South Korea, where the per capita consumption of TM products is about 36% more than modern drugs9. It is often the only affordable treatment available to poor people and in remote communities. The importance of TK for its creators and for the world community at large, and the need to foster, preserve and protect such knowledge, has gained growing recognition in international fora. Thus, in 1981 a WIPO-UNESCO Model Law on Folklore was adopted; in 1989 the concept of “Farmers Rights” was introduced in the FAO International Undertaking on Plant Genetic Resources8; in 1992 the Convention on Biological Diversity (CBD) specifically addressed the issue (article 8(j)). In 2000, an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore was established by the World Intellectual Property Organisation (WIPO) and it first met in April 2011. THE SCOPE :TK encompasses very different types of knowledge. These may be distinguished by the elements involved, the knowledge’s potential or actual applications, the level of codification, the individual or collective form of possession, and its legal status. The desire to protect TK has generated a significant body of literature and many proposals of regulation and for action in different international fora. Precisely how TK is defined has important implications for the kind and scope of a possible protection regime. TK includes, for example, information on the use of biological and other materials for medical treatment and agriculture, production processes, designs, literature, music, rituals, and other techniques and arts. This broad set includes information of a functional and of an aesthetic character, that is, processes and products that can be used in agriculture or industry, as well as intangibles of cultural value. Mostly, TK comprises of knowledge which has been developed in the past, but which still continues to be developed. Most TK is, in effect, of non-contemporary nature; it has been used for generations and in many cases collected and published by anthropologists, historians, botanists or other researchers and observers. However, TK is not static; it evolves and generates new information as a result of improvements or adaptation to changing circumstances.
The context of TK varies significantly and its forms of expression. Some TK is codified, that is, formalised in some way (eg textile designs, ayurveda traditional medicine). A great part of TK, however, is non-codified non-codified or tacit, such as, “folk”, “tribal” or “indigenous” medicine, which is based on traditional beliefs, norms and practices accumulated during centuries old ex periences of trial and error, successes and failures at the household level, and passed to successive generations through oraltradition. TK may be possessed by individuals (eg healing practices and rituals), by some members of a group, or be available to all the the members of a group (“common knowledge”), for example with knowledge on herbal-home remedies which is held by millions of women and elders. When its application, and in particular the delivery of TK-based products, can be made through commercial channels TK may be of commercial value. While some TK can be used and understood outside its local/traditional/communal context, this is not always the case. There are often spiritual components in the TK peculiar to each community. Knowledge that cannot be utilised beyond its communal context has little or no commercial value, despite the value that such knowledge may have for the life of the originating community. PROTECTING OF TRADITIONAL KNOWLEDGE
Several proposals have been made, within and outside the IPRs system, to “protect” TK. Such proposals often fail to set out clearly the rationale for its protection. Any system of protection, however, is an instrument for achieving certain objectives. Therefore, a fundamental question, before considering how TK may be protected, is to define why it should be. Two types of intellectual property protection are being sou ght: Defensive protection
aims to stop people outside the community from acquiring intellectual property rights over traditional knowledge. India, for example, has compiled a searchable database of traditional medicine that can be used as evidence of prior art by patent examiners when assessing patent applications. This followed a well-known case in which the US Patent and Trademark Office granted a patent (later revoked) for the use of turmeric to treat wounds, a property well known to traditional communities in India and documented in ancient Sanskrit texts. Defensive strategies might also be used to protect sacred cultural manifestations, such as sacred symbols or words from being registered as trademarks. Positive protection is the granting of rights that empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation. Some uses of traditional knowledge can be protected through the existing intellectual property system, and a number of countries have also developed specific legislation. However, any specific protection afforded under national law may not hold for other countries, one reason why many indigenous and local communities as well as governments are a re pressing for an international legal instrument . WIPO’s work on traditional knowledge addresses three distinct yet related areas: traditional knowledge in the strict sense (technical know-how, practices, skills, and innovations related to, say, biodiversity, agriculture or health); traditional cultural expressions/expressions of folklore (cultural manifestations such as music, art, designs, symbols and performances); and genetic
resources (genetic material of actual or potential value found in plants, animals and microorganisms). Reasons For Protection One reason for a lack of clarity about the rationale for protection stems from the different meanings given to the concept of protection. Some understand this concept in the context of IPRs, where protection essentially means to exclude the unauthorised use by third parties. Others regard protection as a tool to preserve traditional knowledge from uses that may erode it or negatively affect the life or culture of the communities that have developed and applied it. Protection here has a more positive role in supporting TK-based communities livelihoods and cultures, as proposed by the Organisation of African Unity’s (OAU’s) Model Law and its definition of community rights .Overall, however, the main arguments for granting protection to TK include: Equity
The underlying concept in many proposals for the protection of TK is based on equity considerations. TK generates value that, due to the system of appropriation and reward currently in place, is not adequately recognised and compensated. The protection of TK would, therefore, be necessary to bring equity to essentially unjust and unequal relations. The basic point in this criticism is that traditional/indigenous farmers are not paid for the value they deliver, since breeders and seed companies are not charged a price for the samples they obtain, and neither is there any later compensation or sharing of benefits with the farmers. A similar argument applies to other intangible components of TK. For regulatory purposes a distinction may be made between access to and use of genetic resources vis-à-vis access to and use of TK. For instance, national access legislation some cases applies to genetic resources only, while in others it also covers TK as an intangible component.
Conservation A second factor underlying the claim for protection of TK is based on the importance of such knowledge for conservation purposes. Thus, maintenance of biological diversity in farming systems generates value for the global community. IPRs might be used to generate income to sustain activities that would otherwise be abandoned. If traditional farmers for example, abandoned the use and breeding of farmers’ varieties attracted by the higher income obtainable through planting higher yielding modern varieties then a serious loss of biodiversity could occuri. occuri. However, on the conceptual level, it is doubtful whether the protection of farmers’ varieties under an IPRs system would have any positive impact on their conservation con servation or stimulate breeding activity, and whether protection would serve the purpose of strengthening the rights of communities and traditional farmers over their resources. Under this approach, the protection of TK helps meet society’s broader objectives for the conservation of the environment, sustainable agriculture and food security.
Promoting Use And Development
The promotion of the use of TK is an important objective in itself. Article 8 (j) of the CBD, often quoted in relation to the protection of TK, requires the promotion of the “wider application” of TK. It may be argued that protecting TK against loss and misappropriation, or ensuring compensation to TK holders , are necessary elements to stimulate the broader use of such knowledge. Protection may be, in this context, a tool for facilitating access to TK21. Some form of protection may create the basis of trust required for the local/indigenous communities to part with their knowledge, and improve their position to obtain value from it22. If some rights were recognized , knowledge holders may be more prepared to provide access to their knowledge and, if fairly compensated, they will have more incentives to conserve it and ensure future access.
Promoting development may also be a fundamental motivation behind protecting TK from destruction and loss. TK is an under utilise resource in the development process23. Legal protection may help to exploit the opportunities of TK-based products and services24. TK may also be a critical resource for strengthening local innovation, and innovation is important for reinforcing (even rebuilding) local cultures25. Methods of protecting and conserving TK
IPRs are seen as one possible means to “protect” TK. There are are both ardent proponents and critics of extending IPRs to the knowledge of indigenous and traditional communities, including landraces. Those who advocate the application of IPRs to TK find that there are many examples of TK that are or could be protected by the existing IP system, or by modifying certain aspects of the current forms of IPRs protection26. Those who are reluctant or opposed to the idea of applying existing IPRs or creating a new form of IPRs to protect TK base their arguments on both practical reasons and principles, namely the essential incompatibility between the concepts of Western IPRs and the practices and cultures of local and indigenous communities27. For some opponents, bringing communities and their resources into the fold of the market economy could overwhelm and ultimately destroy those societies28. Others argue that, given the difficulties inherent in establishing IPRs protection for TK, national IPRs legislation and international conventions should just ensure that such knowledge is not unduly appropriated and preserved outside the IPRs system. CHALLENGES IN PROTECTING TRADITIONAL KNOWLEDGE
A patent is given for the innovation or invention that is novel and commercially viable. TK is known for a long period of time and hence lacks novelty, involves no inventive step and the restriction of ownership within communities does not make TK commercially viable. Traditional knowledge is created and owned collectively by the community and its use and transfer is guided by traditional laws and customs, whereas Intellectual Property Rights (IPRs)29 are largely individual rights based on western legal and economic parameters as well as western property law that emphasizes exclusivity and private ownership, reducing knowledge and cultural expressions to commodities that can be privately owned by an individual or a corporation
Today’s IPR regimes also do not have any mechanism to protect or reward the public-domain public-domain foundations on which the innovations may be based31. For, e.g. a small change made in earlier art and a new use for an existing product are independently patentable SOURCES OF TRADITIONAL KNOWLEDGE
Existence of TK can be broadly divided into two categories – recorded and oral knowledge. Recorded knowledge is often referred as codified and is available mainly in the form of ancient texts and books. Contemporary books, journals and reports that focus on TK are also the sources of recorded knowledge. Another significant category of TK is the oral knowledge that is not recorded or codified anywhere. It is widely dispersed; remains confined to the local communities and is transferred only orally from generation to generation. Identifying and preserving oral knowledge needs utmost attention as it is the basis of livelihood for many indigenous communities and the threat is not only towards losing it but also because of its gross misuse by corporate and private parties. BIOPIRACY OF TRADITIONAL KNOWLEDGE
Traditional knowledge has always been an easily accessible treasure and thus has been susceptible to misappropriation. The traditional knowledge, particularly, related to the treatment of various diseases has provided leads for development of biologically active molecules by the technology rich countries. In other words, traditional knowledge is being exploited for bio prospecting. Also Traditional knowledge is often misappropriated, because it is conveniently assumed that since it is in public domain, communities have given up all claims c laims over it. Biopiracy can be defined as the stealing of biomedical knowledge from traditional and indigenous communities or individuals. The term can also be used to suggest a breach of a contractual agreement on the access and use of traditional knowledge to the detriment of the provider, and also applies to bioprospecting without the consent of the local communities. Biopiracy: the Indian Experience
In 2000, CSIR found that almost 80 per cent of the 4,896 references to individual plant based medicinal patents in the United States Patents Office that year related to just seven medicinal plants of Indian origin. Three years later, there were almost 15,000 patents on such medicines spread over the United States, UK, and other registers of patent offices. In 2005 this number had grown to 35,000, which clearly demonstrates the interest of developed world in the knowledge of the developing countries. Conveniently, none of the patent examiners are from developing countries, allowing a virtual free pass to stealing indigenous kno wledge from the Old World. Biopiracy – the the misappropriation of TK
“Bio“Bio- piracy” piracy” has h as been defined as the process p rocess through which the th e rights of indigenous cultures to genetic resources and knowledge are “erased and replaced for those who have exploited indigenous knowledge and biodiversity”a. In fact, a large number of patents have been granted
on genetic resources and knowledge obtained from developing countries, without the consent of the possessors of the resources and knowledge. STRATEGIES
1)Application of existing IPRs:Some elements of traditional medicine may be protected under patents. Patents have been granted on natural components, as well as on combinations of plants for therapeutic use34. “The variety shall be deemed to be new if, at the date of filing of the application for a br eeder’s eeder’s right, propagating or harvested material of the variety has not been sold or otherwise disposed of to others, by or with the consent of the breeder, for purposes of exploitation of the variety (i) in the territory of the Contracting Party in which the application has been filed earlier than one year before that date, and (ii) in a territory other than that of the Contracting Party in which the application has been filed earlier than four years or, in the case of trees or of vines, earlier than six years years before the said date”.
Most laws require, as a condition for protection,35 that the person in control of the information adopt the steps necessary, under the relevant circumstances, to keep the information confidential. In other words, there should be deliberate acts aimed at protecting, as secret, the relevant information. This may happen in certain cases of possession of TK (eg by tribal healers) but in others (eg plant varieties) the communities’ practice is generally to permit and even promotethe exchange and use of the knowledge by other farmers. 2)Designing an IPRs sui generis regime Another approach, that has been strongly advocated by some academics and many NGOs, would be the development of a sui generis regime of IPRs, that is, a legal regime “of its own kind” which is specifically adapted to the nature and characteristics of TK. A model of sui generis national legislation that would give communities property-like rights over their collective knowledge was developed by the Third World Network (Community Intellectual Rights Act) in 1994. discusses the OAU Model Law and there are also proposals made by some Latin American countries for the adoption of a sui generis regime for TK in the context of the Free Trade Agreement for the Americas36. Although this approach has received considerable attention in the literature, little progress has been made in terms of actually implementing this kind of protection. The establishment of a sui generis regime poses, in fact, many complex conceptual and practical issues. Briefly these are. • Definition of the subject matter of protection • Requirements for protection • Extent of rights to be conferred (rights to exclude, to obtain remuneration, to avoid misappropriation) • Title-holders Title-holders (individuals/communities) • Modes of acquisition, including registration • Duration
• Enforcement measures Single or multiple regimes:- If the sui generis route is adopted, a critical policy issue is whether the search for a regime of protection of TK should aim at a single, comprehensive, regime covering all manifestations of TK, or for a set of different, specific regimes adapted to the nature of the subject matter to be protected. Development of a single regime requires dealing with quite diverse subject matters (eg artistic artist ic works, farmers’ varieties, traditional medical methods) for which it might be hard to define common rules. An alternative approach is to consider the adoption of specific regimes for well-defined components of TK, such as for: • artistic creations, including including expressions of folklore; • plant genetic resources for food and agriculture and associated knowledge; • traditional medicine (TM). WIPO have already done important work on folklore that could be revitalised under their auspices and aim to promote the adoption of national laws and possibly an international convention on the matter. b)Rights conferred :- Any sui generis regime must define the nature of the rights conferred. In most cases, IPRs grant exclusive rights, ie the faculty to prevent third parties from exploiting the protected subject matter. Some types of IPRs, however, do not entail exclusivity. For instance, the TRIPS Agreement does not require the granting of exclusive rights over undisclosed information. 3)Enforcing customary laws Finally, protection may be achieved by ensuring the enforcement of existing customary rules, which - in accordance with evidence collected by WIPO - in some cases include elements comparable to IPRs38. For instance, the draft “Biodiversity and Community Knowledge Protection Act” of Bangladesh prohibits the violation of “Common Property Regimes” that 38 See also Valencia, 1998 include various rights, relations, arrangements and cultural practices, whether or not they have legal expressions or recognition, by which communities own, use and have access to biological and genetic resources39. 4) Impact on intended beneficiaries Given the great number and cultural diversity of traditional and indigenous communities, and the different components of TK, it is extremely difficult to identify the concerns of the intended beneficiaries of new systems of protection. For many such communities, the application of IPRslike concepts, particularly, monopolistic rights, is essentially in contradiction to their beliefs and practices, based on openness and sharing of knowledge40. However, there might be cases (for instance, in the area of TM) where the control of knowledge (often on the basis of rituals) through IPRs41 would be acceptable and desirable for the possessors of TK. Reviews of anthropological literature reveal that concepts close or equivalent to individual forms of IPRs are quite common in indigenous and traditional proprietary systems42.
CASE STUDY YahooIndia.com:
This is a case related with domain name. Similarly in a trademark infringement case in 1999 brought up by Yahoo Inc, the Delhi High Court ruled that trademark laws are just as valid on the Internet as in the physical world. Yahoo Inc. filed a suit against Akash Arora and Netlink Internet Services, accusing the two of passing off their services on the Internet through their adoption of the domain name “Yahooindia.com”. The court rejected the defendants’ arguments, noting that – Using the same names will result in confusion and deception where the parties are in the same or similar business line. A very alert vigil is a must and a strict view should be taken where there is copying over the Internet because of its easy accessibility. Trademark law is applicable with equal force on the Internet as it is in the physical world. Putting a disclaimer that the defendants have nothing to do with Yahoo! did not reduce the chances of deception and confusion. Such cases are on a continual increase. Protection of Undisclosed Information The protection of trade secrets and undisclosed information is an area that is attracting a lot of attention. Article 39 of TRIPs includes minimum standards for the protection of undisclosed information and data submitted to governments or governmental agencies as required in the case of pharmaceutical and agricultural chemical products, which utilize new chemical entities. Undisclosed information in the form of trade secrets is also protected und er this article. Though employment contracts broadly cover clauses on confidentiality of information, most business houses and institutions do not take adequate care of information security procedures within their organizations. The emerging trend is that companies are requiring their employees to sign invention assignment agreements in addition to confidentiality clauses as part of their employment contracts.43
Motorola vs. Integrated Circuit Systems (ICS) Motorola in July 1999, filed a lawsuit against ICS and several managers who left Motorola while working in its Timing Solutions Solutions Operation, to set up a new ICS operation. Motorola’s complaint was that ICS did this to gain access to Motorola’s business and technical trade secrets and that the managers who left, had breached fiduciary duties and misappropriated trade secrets. Though ICS and the former Motorola managers denied the allegations, a settlement was reached on March 27, 2000, where Motorola agreed to: dismiss the lawsuit in exchange for the defendants’ agreement to make an undisclosed monetary payment, refrain from using using or disclosing Motorola’s confidential information, and to refrain from using certain design technologies for limited time periods, restrict further hiring and solicitation of Motorola employees and grant Motorola certain rights to use certain ICS in tellectual property44.
Walmart vs Amazon.com: Walmart had filed a suit in a US Court against Amazon.com, claiming that Amazon was attracting executives and employees of Walmart, together with their consultants, to access the trade secrets of Walmart. The case was settled in 1999. Under the terms of the settlement, Amazon agreed to reassign some of its employees where their knowledge of Walmart’s operations would not be used. Limits were also placed on the projects to which the former Walmart workers were involved involved in Amazon’s operations45. Cases of Biopiracy in India Turmeric: The rhizomes of turmeric are used as a spice for flavouring Indian cooking. It also has properties that make it an effective ingredient in medicines, cosmetics and dyes. As a medicine, it has been traditionally used for centuries to heal wounds and rashes. In 1995, two expatriate Indians at the University of Mississippi Medical Centre (Suman K. Das and Hari Har P. Cohly) were granted a patent (no.5, 401,504) on use of turmeric in wound healing. The Council of Scientific & Industrial Research (CSIR), India, New Delhi filed a re-examination re-ex amination case with the US PTO challenging the patent on the grounds of existing of prior art. CSIR argued that turmeric has been used for thousands of years for healing wounds and rashes and therefore its medicinal use was not a novel invention. Their claim was supported by documentary evidence of traditional knowledge, including ancient Sanskrit text and a paper published in 1953 in the Journal of the Indian Medical Association. Neem:
Neem extracts can be used against hundreds of pests and fungal diseases that attack food crops; the oil extracted from its seeds can be used to cure cold and flu; and mixed in soap, it provides relief from malaria, skin diseases and even meningitis. In 1994, European Patent Office (EPO) granted a patent (EPO patent No.436257) to the US Corporation W.R. Grace Company and US Department of Agriculture for a method for controlling fungi on plants by the aid of hydrophobic extracted Neem oil. In 1995, a group of international NGOs and representatives of Indian farmers filed legal opposition against the patent. They submitted evidence that the fungicidal effect of extracts of Neem seeds had been known and used for centuries in Indian agriculture to protect crops, and therefore, were unpatentable. In 1999, the EPO determined that according to the evidence all features of the present claim were disclosed to the public prior to the patent application and the patent was not considered to involve an inventive step. The patent granted on was Neem was revoked by the EPO in May 2000.
Basmati Rice: Rice Tec. Inc. had a pplied for registration of a mark “Texmati” before the UK Trade Mark Registry. Agricultural and Processed Food Exports Development Authority (APEDA) successfully opposed it. One of the documents relied upon by Rice Tec as evidence in support of the registration of the said mark was the US Patent 5,663,484 granted by US Patent Office to Rice Tec on September 2, 1997. This US utility patent was unique in a way to claim a rice plant having characteristics similar tothe traditional Indian Basmati Rice. It was challenged and later revoked by USPTO46.
BIBLIOGRAPHY REFERENCES FROM THE INTERNET 1. http://www.wipo.int 2. http://www.tansey.org.uk 3. https://scholar.google.co.in REFERENCES FROM ARTICLES & PDFs 1. Traditional Knowledge and Intellectual Property 2. PROTECTING TRADITIONAL KNOWLEDGE: THE INDIAN EXPERIENCE 3. Intellectual Property Rights & Traditional Knowledge -Case An alysis REFERENCS FROM THE BOOKS 1. Lexis nexis Law relating to intellectual property rights – rights – V.K V.K Ahuja 2. West legal studies intellectual property patent, trademark and cop yright- Richrd Stim 3. Introduction to intellectual property right-Phundan Singh.
