Traditional Knowledge and Patent
Updated: May 6, 2020
Till recently the world’s richest man was an oil worker, “today he is a knowledge worker”. This statement sums up the importance of the knowledge in a rapidly changing society. Knowledge has been recognized as a primary source of modern times. Intellectual properties have been created either by individuals or by communities and recognition justify the protection of intellectual property (IP).
Patents, trademarks, copyright, designs are the traditional form of intellectual property (IP), which falls under the categories of individually created intellectual property (IP). Traditional knowledge managed intellectual property (IP). On the other hand traditional knowledge has been passed from one generation to other generation. There is a controversy going on regarding, the commercial exploitation of the traditional knowledge by the multinational corporation, mostly belonging to developed countries.
Firstly coming to the concept of traditional knowledge. It can be said that there is no definition which have been universally accepted, as different people have different perception. Many of them use the concept of Traditional knowledge interchangeably with that of indigenous knowledge .The world intellectual property organization (WIPO) currently uses the term “traditional knowledge “ to refer to artistic , tradition-based literary, scientific works ; performance ; scientific discoveries ; inventions ; designs ; symbols ; marks and symbols . Traditional knowledge is a kind of knowledge in which distinct culture members have been involved. Means of information is different to that culture, and about the culture itself or the restricted area of environment in which it is present. Indigenous knowledge nicely comes under the category of Traditional knowledge but Traditional knowledge does not come under the category of indigenous knowledge. In other words indigenous knowledge is traditional knowledge but traditional knowledge is not inevitably indigenous knowledge.
Example of traditional knowledge comprises the knowledge regarding specific plants uses, recognition medicinal properties in plants and harvesting practices. In India traditional knowledge comprises the use of neem, turmeric and tamarind etc., for medicinal and other purpose and Ayurveda system of medicine. The distinctive phenomena of traditional knowledge are that single entity cannot control by common property resources. In India traditional knowledge mainly used in making medicinal preparations, folklore textile designs and cultivating certain agriculture products.
Traditional Knowledge in a general sense embraces the content of information itself as well as traditional culture expressions, involving different signs and symbols associated with traditional knowledge.
Traditional Knowledge in a narrow sense refer to information as such, in specific knowledge resulting from intellectual activity in traditional context, and includes know- how practices, skills and innovations.
Results for while the policy issue relating TK are broad and diverse, the IP issues into 2 key themes: Defective protection site a set of game plan to confirm that 3rd party don’t obtain unlawful IP right over traditional knowledge. These measures contain the amendment of WIPO-administration patent system.
Some nation and communities are also blooming traditional knowledge based on data that may be utilize as a proof of prior art to overcome a claim to a patent on such traditional knowledge.
There are two types of positive protection of traditional knowledge:
- Avoiding unofficial use
- Active treatment of traditional knowledge by the originating set itself
Traditional Knowledge is a mixed concept that contain of various part. Most of the Traditional knowledge remained undocumented the reason behind it, is mostly transmitted orally. Tradition doesn’t mean that knowledge is an ancient. Social environment posses and challenge to the communities and individuals on which they response, traditional knowledge is created every day. The Protection of traditional knowledge is also very important in the countries and especially in the undeveloped or least develops countries. Traditional knowledge play an important in the economic and social organization of the nation. IP is only about the property. IP has a very important role to play by protecting the dignity holders of traditional knowledge.
The word patent is originated from the word “Patene” which means to open. The concept of patent is very old. The earliest system is originating in England under Queen Elizabeth. In 12th century it began to grow in that country and by 14th special privilege was made. Patent comes under Intellectual property right. In patent there is a ownership given to a parson for a limited period of time, it is usually 20 years. Patent is a kind of legal document which is issued by government to his heirs, assigns, investor, etc. In modern use the term patent refer to that person who comes up with some new thing or new idea, which is not obvious.
There are two types of patent.
Position patent: Process patent means that when a material is created for the substance the patent is not guaranteed, but it is the only technique of creating a substance that granted a patent. Patent is granted to technique not to the substance.
Product patent: This type of patent confers greater monopoly rights on the patentee. In this patent is not granted to technique or method of manufacture but for the substance itself.
The Patent Act, 1970 make it clear that patent is not liable for the profit of the patentee, but for the public profit at large. There for it is mention that always maintain a balance between public interest and individual interest. Now India has sign treaty to the TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights) it comes under the duty to provide product patents to all invention from 01-01-2005. Article 27 (1) of TRIPS agreement deals with the features of patentable subject. In patentability members are excluded. In respect of product and technique patent can be permitted.
[ii] Intellectual Property Rights and the Law; by G.B REDDY, edition 2015-16, Gogla Law Agency.
Tanvi Shree (BBA LL.B, Sem 2, ALSK)