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`Enact law to protect traditional knowledge'

By R. Gopalakrishnan

MANIPAL OCT. 18. India should enact a sui generis law to protect its traditional knowledge and fight Western piracy of the knowledge, according to N.R. Subbaram, consultant on intellectual property rights and former Controller of Patents.

The proposal was floated by Mr. Subbaram at a two-day workshop for mediapersons and biomedical scientists, organised by the Union Ministry of Human Resource Development in association with the Manipal Institute of Communication (MIC) at Manipal. It is aimed at encouraging disclosure of traditional knowledge in medicine by practitioners such as individuals, families and communities in India, documenting such knowledge and rewarding the practitioners in a suitable manner. This would help fight cases in the West, especially the United States, where attempts were sometimes made to present products derived directly from such knowledge (without any innovation) as inventions, said Mr. Subbaram, who represented India in the cases relating to turmeric and neem in the U.S. and Europe.

Mr. Subbaram emphasised how discussion in the public sphere in India betrayed a failure to distinguish between mere replication of traditional knowledge and legitimately patentable innovations such as isolation of active ingredients in herbs and medicinal plants. He felt it would not be desirable for India to remove the scope for pre-grant hearing of opposition in the patenting process (as proposed by some circles) while amending the Patents Act before 2005 to fall fully in line with TRIPS (by granting product patents for foods, drugs and chemicals).

Ashwini Kumar Bansal, IPR consultant and attorney, emphasised that IPR was in reality intended to protect the investor rather than the inventor. Accusing the developed countries of falsely making out that IPRs were a "moral" issue while in fact they were only an economic and legal issue, he said there was no reason why India, with practically no globally known brand, should protect "well-known trade marks" (not registered in the country) under its latest trade mark law. Even Britain, which was obliged to protect well-known marks under treaties it had signed, had not gone in for this measure. This only served the interests of the developed countries whose big corporations owned a large number of globally known trademarks.

Dr. Bansal said the U.S. to this day retained the narrower "national search" criterion for determination of "prior art" for patenting purposes, while India, to its disadvantage, adopted the norm of a global search to decide on the presence or otherwise of innovativeness. He felt that little had been achieved at Doha by India, considering that most of the assurances given by developed countries in regard to drugs had already been incorporated in the TRIPS (Trade Related Intellectual Property Rights) agreement.

In Cancun, India should have taken up the issue of expansion of coverage of products (other than champagne and spirits) under the rules relating to geographical indications. He counselled Indian companies to learn from multinational corporations the skills for maximum exploitation of IPRs.

Lawrence Liang, on the Faculty of the National Law School of India University, Bangalore, and activist of the Alternative Law Forum, sought to establish a link between the easier availability of cultural products to the "culturally marginalised" sections (or the poor) in India and violation of copyright laws by pirates. He felt that copyright laws were increasingly being loaded in favour of the owners-assignees of the rights (such as publishers, film producers and record companies) who only used the "plight" of authors of works of literature and the arts to protect their own narrow interests.

As a result of the monopoly practices of owners of copyright, "the public sphere is in danger of extinction", he warned.

Leela Rao, Director, MIC, said the institute, a constituent of the Manipal Academy of Higher Education, would explore the scope for establishment of an IPR cell.

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