Traditional knowledge and patent issues: with references to basmati, neem, turmeric and golden rice

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The word “Patent” originates from the Latin word “Patere” meaning “to lay open” that can also be said as the thing which can be made available for public inspection. It can also be said as the open document or instrument issued by a monarch or government granting exclusive rights to a person, predating the modern patent system.

INTRODUCTION

In today’s era, this term is also used to refer to the right granted to anyone who invents any new, useful and non-obvious process, machine, article of manufacture or composition of matter. A Patent is a set of exclusive rights granted by a sovereign state or intergovernmental organization to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention. The treaties WIPO administers, together with national and regional laws, make up the international legal framework for patents.

Patent related treaties-

1) Paris Convention

2) Patent Cooperation Treaty

3) Strasbourg Agreement Concerning the International Patent Classification

4) Patent law Treaty

5) Budapest Treaty

HISTORY

In history there are some of the evidences that are found to be the patent rights which was recognised by the Ancient Greek in the Greek city of Sybaris, the first statutory patent system is generally regarded to be the Venetian Patent Statute of 1474. Patents were systematically granted in Venice as of 1474, where the decree was issued by which new inventive devices had to be communicated to the Republic in Order to obtain legal protection against potential infringers. This led to the diffusion of patent systems to other countries.

While if we talk about English Patent system evolved from its early medieval origins into the first modern patent system that recognised intellectual property in order to stimulate invention; this was the crucial legal foundation upon which the Industrial Revolution could emerge and flourish. The English Crown was habitually abuse till the 16th century for granting of letters patent for monopolies. This was incorporated into the Statute of Monopolies in 1624 in which Parliament restricted the Crown’s power explicitly so that the King could only issue letterspatent to the investors or introducers of original inventions for a fixed number of years.

The first Patent Act of the U.S. Congress was passed on April 10, 1790titled “ An Act to promote the progress of useful Arts”. Between 1790 and 1836 about ten thousand patents were granted. By the Civil War about 80000 patents had been granted.

ELEMENTS

 Abstract

A patent’s abstract is a synopsis of the patented invention, process, substance or design. It provides a brief summary of the technical information disclosed in the patent.

 Specification

A patent’s specification provides details about the invention and demonstrates how it differs from earlier inventions. The specification includes a title, which indicates the invention’s general field. The specification also has 3 major elements- background, description and claims.

 Background

The background section provides a thorough overview of the invention’s prior art. It consists of the existing technologies and information related to the patents invention.

 Description

A patent description section provides a complete explanation of the invention’s components and how it works. In exchange for a patent, an investor must publicly disclose all of the details of his invention.

 Claims

The claim section provides a narrow, precise statement of what the invention is. It is the most important element in a patent because it establishes the exact scope, or boundaries of the patent’s invention.

 Declaration

A patent includes an inventor’s declaration that he was the first to invent the device, process, substance or design. The inventor must also affirm that the patent discloses all of the information that is material to the invention’s patentability.

TURMERIC PATENT

Turmeric is a tropical herb grown in east India. Turmeric powder is widely used in India as a medicine, a food ingredient and a dye to name a few of its uses. In 1995, the United States awarded patent on turmeric to University of Mississippi medical centre for wound healing property. The Indian Council for Scientific and Industrial Research (CSIR) had objected to the patent granted and provided documented evidences of the prior art to UPSTO. Though it was a well known fact that the use of turmeric was known in every household since ages in India, it was a herculean task to find published information on the use of turmeric powder oral as well as topical route for wound healing. UPSTO revoked the patent, stating that the claims made in the patent were obvious and anticipated, and agreeing that the use of turmeric was an old art of healing wounds. Therefore, the TK that belonged to India was safeguarded in Turmeric case.

NEEM PATENT

The patent for Neem was first filed by W.R Grace and the Department of Agriculture, USA in European Patent Office. The said Patent is a method of controlling fungi on plants comprising of contacting the fungi with a Neem oil formulation. The legal opposition to this patent was lodged by the New Delhi based Research Foundation for Science, Technology and Ecology (RFSTE), in cooperation with the International Federation of Organic Agriculture Movements (IFOAM) and Magda Aelvoet , former green Member of the European Parliament (MEP). The barks, leaves, flowers, seeds of neem tree are used to treat a variety of diseases ranging from leprosy to diabetes, skin orders and ulcers. The opponents submitted evidence of ancient Indian ayurvedic texts that have described the hydrophobic extracts of neem seeds were known and used for centuries in India, both in curing dermatological diseases in humans and in protecting agricultural plants from fungal ] ginfections. The EPO identified the lack of novelty, inventive step and possibly form a relevant prior art and revoked the patent.


BASMATI PATENT

The US patent office granted a patent to ‘ricetec’ for a strain of Basmati rice, an aromatic rice grown in India and Pakistan for centuries. Rice is the staple food of people in most parts of Asia, especially India and Pakistan. For centuries the farmers in this region developed, nurtured and conserved over a hundred thousand distinct varieties of rice to suit different tastes and needs. In 1997, in its patent application Ricetec also acknowledged that “good quality Basmati rice traditionally come from northern India and Pakistan”. The Indian Government had pursued to appeal only 3 claims out of 20 claims made in the original patent application of RiceTec Inc. It is to be made in notice that WTO Agreement does not require countries to provide Patent protection to plant varieties. It only requires countries to legislate so that plant varieties are protected in every manner.

Three strains development by RiceTec are allowed patent protection and they are eligible to label it strain as “Superior Basmati Rice”. Therefore, in Basmati case, RiceTec altered the strain through crossing with the Western Strain of Grain and successfully claimed it as their invention and the case is an example of problems illustrated in TRIPS with regards to patenting biotechnological processes.

FAMOUS CASES

1) Shenzhen Daily Necessities Co. Ltd. v. Shenzhen Silicone Electronics Co. Ltd. on design patent infringement {Guangdong Higher People’s Court (2016)ue Final Civil Judgement No. 1036}

This case is typical in that it imposed severe punishment on repeated infringement. The tricky part is to distinguish between repeated prosecution and repeated infringement. The court of second instance decided that the infringer’s selling of infringing products constituted repeated infringement and thus imposed heavy punishment, which produced favourable legal and social impact.

2) US based Catalytic Distillation Technology Corporation v. Huahaoxuan New Energy Technology Development Co. Ltd. on evidence preservation before patent litigation [ Xi’an, Shaanxi Intermediate People’s Court (2016) Shan Civil Judgement No.2] Clearly stipulated which evidence falls into the circumstance of “when evidence might be lost or might not be acquired” as provided in Article 67 of Patent Law of the People’s Republic of China.

3) HCNT Technology v. Hangzhou Alibaba Advertising Co. Ltd. &JianyangShunyi Trading limited on invention patent dispute [Fujian Higher People’s Court (2016) Min Final Civil Judgement No. 1345]

This case provides good reference in terms of determining whether the notification of patentee to network service provider, after the patent right is infringed under the network setting, is valid. In occurrence of patent right disputes, is it justifiable for network providers to require patentees to provide preliminary evidence of infringement? Shall such notification be considered as invalid if evidence submitted to a network provider is incomplete?

The court said that it is justifiable for network provider to ask patentees for preliminary evidence materials signifying the alleged infringement, considering that the determination of patent right infringement is a serious and highly professional business.

REFERENCES

1) www.pharmatutor.org

2) www.wipo.int

3) www.mondaq.com

4) www.san-you.com

5) Info.legalzoom.com