The Council of Scientific and Industrial Research (CSIR) is contemplating budget cuts to the Traditional Knowledge Digital Library (TKDL). If true, this is welcome news: the TKDL has always been a poorly conceptualised and executed project.
Its can be traced to three controversial patent cases in the US related to neem, turmeric and basmati. The neem patent was for a bio-pesticide derived from neem extracts. The turmeric patent was related to turmeric’s healing properties. The basmati patent had to do with a new variety developed by a US company named Rice Tec.
The grant of these patents by the US Patents and Trademark Office (USPTO) led to vociferous protests in India on the grounds that the patents were related to ‘traditional knowledge’. This was not entirely true. For example, while the pesticidal properties of neem were always known in India, the patent granted in the US pertained to a storage-stable formulation of an organic compound called azadirachtin derived from neem. The formulation allowed the pesticide to be stored for long durations.
Regardless of whether the patents were justified or not (under US law), the more important question was whether they actually harmed Indian economic interests. A patent granted by the USPTO has no effect in India: its jurisdiction is restricted to the US. But rather than examine the cost-benefit analysis of challenging these patents, a misplaced sense of pride in our past glory, together with a poor understanding of patent laws, led to Indian NGOs as well as CSIR challenging their validity.
The turmeric and basmati patents were invalidated by the USPTO after challenges filed by the CSIR, which had engaged Indian and US law firms. But after spending crores of rupees over these challenges, surmounting them has not demonstrably benefited the Indian economy.
The controversies over these three patents led to a Planning Commission task-force recommending in 1999 that Indian traditional knowledge be digitised, translated and made available to foreign patent-office examiners. But this recommendation assumed presumptuously that ancient Indic science contained knowledge not yet available to modern scientific techniques or literature, and betrayed the TKDL’s agenda to showcase the “glory” of our traditional knowledge and demonstrate some kind of superiority of the Indian civilisation. Why, even the USPTO’s decisions to invalidate the turmeric and basmati patents were based on information sourced from journal articles published in the twentieth century. All of the supposedly historical texts presented by CSIR et al were of little or no use. These cases provided no reason for setting up a repository of historical texts to assist patent offices. The then-NDA government at the Centre paid no attention to this when approving the CSIR to set up the TKDL.
The TKDL has since spent a not-insubstantial sum of money translating, digitising and cataloguing Indian traditional knowledge into an online database. Even if this seems like an otherwise worthy exercise, it has been in the pursuit of a pointless outcome. It also did not create new knowledge as much as scan databases of existing publications and books written by others – and in many cases likely infringed on the copyrights of the original publishers.
As a part of its mandate, the TKDL also employed several patent examiners to trawl through foreign patent applications and identify those based potentially on Indian traditional knowledge. The TKDL would then file representations or oppositions to challenge these applications. The process of picking specific challenges to oppose wasn’t exactly systematic, either. For example, the TKDL should at least have considered whether the patent application was harmful to Indian economic interests.
Every time an application targeted by the TKDL was rejected by a foreign patent office, the TKDL publicised it as a victory. However a closer examination of TKDL’s claims revealed that they had been exaggerated. In most cases where a foreign application was either revoked or abandoned by the patentee, the foreign patent office had already raised objections based on evidence gathered from the modern scientific literature, not from the annals of India’s ‘traditional knowledge’. The TKDL’s interventions were rarely ever the sole basis of rejection. And when applications were abandoned: it is impossible to ascertain the patentee’s reason for doing so. Moreover, it has since also been established that the TKDL was actively opposing patents only in foreign countries. In one case, when it opposed the patent of an Indian company in Europe, it was conveniently silent about the corresponding Indian patent application.
Running the TKDL has not been cheap. Between 2001 and 2012, a sum of Rs 15.96 crore was spent on the organisation. What has this achieved? That the TKDL has not stopped any patent applications of economic significance is apparent from what information is available in the public domain. Its chief contribution has been in compiling a database of existing literature relating to Indian traditional knowledge – but without securing prior copyright permission.
It’s unclear what this database has to contribute beyond the vast repositories of information already available to patent offices around the world. What else would explain the TKDL’s poor track record? Additionally, even if the database contains information not available anywhere else – unlikely considering how it was obtained – and in a centralised manner, CSIR must explain the need why it should be to spend of public funds to employ dozens of people to examine patent applications in foreign countries when these offices already have online access to the TKDL. So if the new director-general of CSIR has decided to reexamine the expenditure of public funds on the TKDL, he deserves public support.
Prashant Reddy Thikkavarapua is a research associate at the School of Law, Singapore Management University. Sumathi Chandrashekaran is a senior resident fellow at Vidhi Centre for Legal Policy. The contents of this article are based on a chapter from the authors’ recently published book. The writers are co-authors of Create, Copy Disrupt: India’s Intellectual Property Dilemmas (OUP 2017).